HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 18 OF 2009 Manzoor Hussain Gulshan Petitioners State and others Respondent !Mr. K. S. Johal, Advocate ^None for respondent Nos. 1 to 4 and 6 & 7. Mr. K. M. Bhatti, Advocate, for respondent No.5. Mr. D. C. Raina, Sr. Advocate, with Mr. F. A. Natnoo, Advocate, for respondent No.8 Honble Mr. Justice Virender Singh, Judge Date: 01.05.2009 :J U D G M E N T:
Vide this order I intend to dispose of the main writ petition at
the stage of admission itself as learned counsel for both the sides
have consented for the same.
In brief, the case set up by the petitioner is that vide order
dated 16.10.1987 (Annexure-A) he was appointed as Teacher in the
month of November, 1987 and was transferred as Warden in Gujjar
and Bakerwal Hostel in the year 1987 itself. Since then he is
continuously working as Warden and presently posted in Gujjar and
Bakerwal Hostel Rajouri. In between also he was transferred in
different Hostels in the State. He had met with an accident when he
was posted as Warden at Doda and this resulted into his 60%
permanent disability. The grievance projected herein is against the
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order dated 31.03.2008 (Annexure-H) passed by respondent No.1 vide
which he has now been repatriated to his parent department and in
his place, respondent No.8 has been picked up.
While issuing notice to the respondents, implementation of the
impugned order was stayed by this Court. It was, however, subject to
objections from the other side.
Respondent No.1, 2 & 8 have already filed their respective
objections to the main petition. Respondent No.8 has also filed an
application bearing CMP No. 526/2009 for vacation/ modification of
the interim order. Mr. Raina, learned Sr. Advocate submits that the
application for vacation of the stay order may be treated as reply to
the CMP No. 20/2009 filed by the petitioner for the interim relief.
Allowed. However, the remaining respondents have not tendered their
reply till date.
Heard learned counsel for both the sides at length and perused
the record minutely.
Mr. Johal submits that continuance as Warden in Gujjar and
Bakerwal Hostel for long 21 years gives the petitioner a substantive
right of continuation for the same post. He submits that in fact the
petitioner was appointed on this post by transfer and, therefore, it
cannot be said to be a case of transfer/ deputation from parent
department, as such, the impugned order of his reversion is legally
not sustainable. While giving the flashback of the earlier writ
petitions, Mr. Johal submits that in September, 1991, the
Government came up with an order for constitution of a Divisional
Level Selection Committee for the purpose of making adjustment
against the posts of Wardens/ Assistant Wardens in Gujjar and
Bakerwal Hostels. Since the said order was affecting the service
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career of the petitioner, he filed writ petition bearing SWP No.
1142/1991, which, however, came to be dismissed on 11.08.1998.
Thereafter also the petitioner filed two writ petitions on different
occasions bearing SWP No. 1127/2004, which was dismissed as
withdrawn with a permission to file fresh one and SWP No.
1743/2005, which was again dismissed as withdrawn with the same
liberty as during the pendency of the said petition, order of transfer
(impugned herein) was passed. In the aforesaid writ petitions, the
petitioner had challenged the policy prescribing the procedure for
filling up the posts of Wardens in Gujjar and Bakerwal Hostels.
Mr. Johal then submits that the petitioner is a Handicap person
with disability of more than 60% as he had suffered a serious
accident during the aforesaid period. Therefore, he is entitled to be
adjusted/ appointed on the basis of his reservation granted under the
provisions of Jammu & Kashmir (Persons with Disabilities Equal
opportunities, Protection of Rights and Full Participation) Act 1998
(hereinafter for short to be referred as Disability Act). He, in this
regard, has drawn the attention of this Court to provisions of Sections
21, 22 & 25 of the Act, requiring 3% vacancies to be reserved for
classification for persons with disabilities. He submits that in the
aforesaid two writ petitions (SWP No. 1127/2004 and SWP No.
1743/2005) also the petitioner had also taken the same plea on the
basis of Disability Act and is agitating it once again through the
instant petition.
Mr. Johal lastly submits that after spending 21 years as
Warden in different Gujjar and Bakerwal Hostels, it would not be
possible for the petitioner to change the track and teach the students,
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that too when he is left with only few years of service and his
permanent disability of 60% is standing in his way.
Repudiating the submissions advanced by Mr. Johal, Mr. Raina
submits that the writ petitioner is seeking to enforce the right, which
is legally not available to him as he wants to stick to a particular post
despite being transferred by his employer as per the policy framed in
this regard. He contends that for the last 21 years, the writ petitioner
is holding a post of Warden on the strength of interim orders passed
by this Court on different occasions in different writ petition(s) filed by
him, whereas it is a simple case of sending the writ petitioner on
deputation/ transfer as Warden in Gujjar and Bakerwal Hostel Doda
being a permanent member of service in School Education
Department. He contends that transfer is the exigency of service and
the writ petitioner cannot project any grievance against the order
when it does not smack of any mala fides. Therefore, he possibly
cannot show any grievance against the impugned order and the
instant petition merits dismissal on this score alone.
Mr. Raina then submits that the writ petitioner otherwise has
not been able to lay any foundation to challenge the Government
Orders of 2003 & 2006 on the basis of the provisions of Disability
Act, and, therefore, he cannot claim any reservation now at this stage
on the ground of any disability suffered by him after many years of
his transfer. Even otherwise, the tendency to stall the transfer by
projecting a case on medical grounds deserves to be curbed and the
Honble Supreme Court of India has taken a serious note of it. At the
same time, after joining at his new place of posting, he can move a
representation for his adjustment projecting his case on medical
grounds, but not at this stage when he has no basis for it.
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Mr. Raina on the basis of aforesaid submissions contends that
the petitioner has no case at all in his favour.
Mr. Bhatti representing respondent No.5 submits that when the
posts were initially created in the year 1977, the mode of appointment
of Wardens was by way of transfer/ deputation and there were no
service rules governing such appointment. Mr. Bhattis concern is
that every Hostel of such type should have Warden at the earliest and
submits that, in fact, at three hostels, no Warden has been appointed
by the State for a reasonably good time and it calls for some
directions to the State.
In my view, the controversy involved in the instant writ petition
revolves around the principal question relating to the service status of
the petitioner. The claim of the petitioner is that he was appointed as
Warden in Gujjar and Bakerwal Hostel Doda, by mode of transfer. It
is not in dispute that there were no service rules governing such
appointment. It is only in the year 2003, the State came up with the
policy (Government Order No.1483- GAD of 2003 dated 19.11.2003),
which envisaged a procedure for filling up the posts of Wardens in the
Gujjar and Bakerwal Hostels in the State. The said procedure is as
under:-
a. The Social Welfare Department shall obtain a
panel of three officers (three for each vacancy)
from the Education Department eligible for
appointment as Wardens of Gujjars and
Bakerwal Hostel
The selection from the panel provided by the
Education Department shall be made by the
Committee consisting of the following officers:-
1. Principal Secretary to Government,
Social Welfare Department.
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2. Director School Education,
Jammu/Kashmir.
3. Director Social Welfare,
Jammu/Kashmir.
4. Secretary, Advisory Board for Gujjars
and Bakerwals.
b. The recommendations of the selection
Committee shall be passed on by the Social
Welfare Department to the General
Administration Department for issuance of
orders.
c. The normal tenure of deputation shall be two
years and may be extended upto a maximum
of three years with the concurrence of the
Social Welfare Department.
The aforesaid policy was thereafter superseded by policy of
2006, which reads thus:-
In supersession of Government Order No. 1483-GAD
of 2003, dated 19.11.2003, it is hereby ordered that
the Wardens/ Assistant Wardens in the Gujjars and
Bakerwals Hostels of the State shall be Governed by
the following procedure:-
a. The General Administration Department shall
obtain a panel of eligible Head
Masters/Masters, who have outstanding
service career from the Education Department
for their posting as Wardens in Gujjars and
Bakerwals Hostels of the State.
b. The Selection of Wardens/Assistant Wardens
from the panel provided by the Education
Department shall be made by a Committee
comprising the following officers:-
1. Administrative Secretary, GAD
Convenor
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2. Administrative Secretary, Social Welfare
Deptt.
3. Administrative Secretary, Education
Deptt.
c. The GAD will issue the orders of deputation of
wardens and Assistant wardens after obtaining
approval of the HCM (Chairman of the J&K
State Advisory Board for Development of
Gujjars and Bakerwals).
d. The normal tenure of deputation of
Wardens/Assistant Wardens in Gujjars and
Bakerwals Hostels shall be two years and in no
case it will be allowed beyond three years.
May be the petitioner, on the basis of the interim orders to his
credit had remained posted as Warden for more than 20 years, that
by itself would not change the complexion of the case or as a matter
of fact his status. His transfer was a simple case of transfer out of
parent department as is clear from the basic order (Annexure-A) dated
16.10.1987 issued by the Education Department, indicating that he
was working as Teacher in High School Planger and was transferred
and posted as Warden, Gujjar and Bakerwal Hostel Doda. Therefore,
legally it is to be construed as deputation for the reason that his
transfer was out of parent department (Education Department).
Deputation, howsoever long it may be, it does not create indefeasible
right in favour of the deputee holding the post on which he was
deputed. In the absence of specific rules providing for appointment
by transfer of an incumbent to the post he is holding, mere transfer
cannot validly be said to be an appointment by transfer. It was, thus,
a transfer/ posting of the petitioner from his parent department
(Education Department) only. Therefore, his reversion to his parent
department can not be allowed to be objected to for any justifiable
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reason. Keeping in view the aforesaid aspect into consideration, I do
not find any merit in the contentions of Mr. Johal raised on this
aspect.
At the same time, Disability Act 1998, the reliance on which is
being made by Mr. Johal to question the validity of reversion order of
the petitioner cannot come to his rescue as the said Act nowhere
stipulates that the person suffering from disability cannot be sent
back to his parent department from the post he has been deputed.
The net result is that finding no merit in the petition, on hand,
the same is dismissed alongwith connected CMP(s). Interim direction
issued shall stand vacated.
Before parting with the order, I may observe here that if the
petitioner at any subsequent stage moves a representation with
regard to his adjustment in his parent department to any place
suitable to him in view of his disability as projected by him, the
concerned authority may accord consideration to his request with
compassion.
( Virender Singh )
Jammu Judge
01.05.2009
Narinder
