Jammu & Kashmir High Court
Sukhdev Singh vs State Of J&K; And Others on 27 July, 2017
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 3267/2015
MP No. 01/2015
Date of order: 27.07.2017
Sukhdev Singh vs. State of J&K and others
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearing counsel:
For the appellant/petitioner(s) : Mr. K. S. Chib, Adv.
For the respondent(s): Mr. Ravinder Gupta, AAG
Heard learned counsel for the parties.
Petitioner and respondent No. 4 are teachers, which is a district cadre post in the School Education Department. Their inter-District transfer on reciprocal basis was ordered by the Director School Education, Jammu, herein respondent No. 2 vide order dated 05.11.2011. Petitioner was transferred from Government Higher Secondary School, Pallanwala, District, Jammu to Government Higher Secondary School, Devak, District, Rajouri against respondent No. 4 and vice versa. The transfer order provided that both the teachers shall retain their lien and promotion prospects in their parent District Cadre and will have to complete minimum tenure of two years at the place they have been posted on reciprocal basis.
The petitioner was not repatriated to his parent district even after completing minimum tenure of two SWP No. 3267/2015 Page 1 of 5 years in District, Rajouri in spite of a legal notice dated 29.05.2014 issued by him to the respondents. He approached this Court in SWP No. 1852/2014. A learned Bench of this Court disposed of that petition vide order dated 18.05.2015 by issuing a direction to the Director School Education, Jammu, herein respondent No. 2, to consider his claim having regard to the legal notice dated 29.05.2014. Respondent No. 2, vide his order No. 539/DSEJ of 2015 dated 03.10.2015, however, disallowed the claim of the petitioner taking the view that it is devoid of any merit. The view taken by respondent No. 2 was that Government order No. 506- Edu of 2010 dated 10.06.2010 provides inter alia that the officials transferred on reciprocal basis have to complete minimum tenure of two years at the place of their reciprocal posting but the order does not provide any condition for swapping the places earlier held by such officials.
In this writ petition, petitioner has challenged the order dated 03.10.2015 (supra) passed by respondent No. 2 and seeks quashing thereof. Counter/objections on behalf of official respondents have not been filed. Learned AAG, however, passes on a copy of order No. DSEJ/legal/6639-40 dated 09.05.2016, which is taken on record. This order would show that after filing of this writ petition, respondent No. 2 has again considered the matter and sought necessary orders from the SWP No. 3267/2015 Page 2 of 5 Administrative Department. Last two paragraphs of this order are important, which I reproduce:
"Since the petitioner has completed stay of two years in district Rajouri and can be considered for repatriation to his parent district as the order of transfer issued by this office vide DSEJ/NG/Tr/8003-04 dated 05.11.2011 provides that both the teachers shall change their place of postings simultaneously retaining lien and promotion prospects in their parent district cadres and it has been further provided in the order that they have to complete the minimum tenure of two years at the place where he/she is posted on reciprocal basis. In view of the above, necessary orders are solicited to proceed further in the matter"
The view taken by respondent No. 2, both while passing the impugned order dated 03.10.2015 as also while seeking necessary orders vide communication dated 09.05.2016 from the Administrative Department is not up to the mark. The question is not as to whether the Government order No. 506-Edu of 2010 dated 10.06.2010 provides for swapping the places of posting held prior to the mutual transfer on reciprocal basis. The question rather is whether the officials given inter-cadre (inter-district) transfer on reciprocal basis should be repatriated to their respective parent district after completion of two years' tenure.
The general rule is that a member of State, Divisional or District Cadre shall be transferable only within his own cadre and shall in no case be transferable SWP No. 3267/2015 Page 3 of 5 from one Divisional cadre to another Divisional cadre or from one District cadre to another District cadre. Inter-cadre (inter-district) transfer of a teacher in terms of Government order dated 10.06.2010 (supra) is an exception to the general rule and cannot be construed in a manner so as to defeat the general principle. It is to maintain this general principle that in case of reciprocal inter-district transfers, lien and promotion avenues are retained in the parent district as was done in the case on hand also. The petitioner, therefore, was required to be brought back to his parent district, however, not necessarily to the post, which he occupied prior to the reciprocal transfer. For doing so no Government approval is required and the order can be passed by the competent authority, which in case of a teacher undisputedly is the Director School Education, Jammu/respondent No. 2, who holds a provincial post. Respondent No. 2 has, thus, violated the rules by not issuing the transfer order pursuant to and in compliance with the direction issued by this Court in SWP No. 1852/2014 (supra) followed by referring the matter to the Administrative Department vide communication dated 09.05.2016 (supra).
Viewed thus, this writ petition is allowed. Impugned order dated 03.10.2015 to the extent it disallows the claim of the petitioner is quashed and by issuing a writ of mandamus respondent No. 2 is directed SWP No. 3267/2015 Page 4 of 5 to issue order for repatriation of the petitioner from District, Rajouri to his parent district, that is, District, Jammu. Let this judgment be complied with within four weeks hereafter.
Disposed of.
(Janak Raj Kotwal) Judge Jammu:
27.07.2017 Rakesh SWP No. 3267/2015 Page 5 of 5