MOHD ISMAIL PARRAY Vs. STATE OF J&K

JUDGEMENT

(1.) THE facts leading to the filing of this writ petition are that the petitioner Associate Professor in the Jammu and Kashmir Institute of Management and Public Administration Services (IMPA for short) was posted as Joint Director vide Government Order No. 1904 -GAD of 1997, dated 6.12.1997. In the year 1999 he was sought to be replaced by respondent 3 vide Government Order No. 423 -GAD of 1999, dated 5.4.1999. Being aggrieved, the order became subject matter of the writ petition. During the pendency of the writ petition another order was issued bearing No. 1242 -GAD of 2000, dated 19.10.2000 appointing respondent 5 as Jt. Director. The said subsequent event constrained the petitioner to lay a motion for amendment of the writ petition which was allowed, consequently, this amended writ petition, questioning both the orders of deputation aforementioned.

(2.) TO succeed in the cause reliance is placed by learned counsel for the petitioner on the Resolution adopted by the Executive Council in its 6th meeting held on July 10th, 1990 which envisages filling up of the post in a regular way and not by deputation (See page 7 of amended writ petition). On the strength of the said resolution it is contended that deputation of respondents 3 and 5 is contrary to law. The argument needs no deliberation for the simple reason that the earlier decision of Executive Council stood modified by Executive Council itself and exercise of such power is not unknown to law, for, the authority which has the power to make an order has also the power to add, amend or rescind the same. In this backdrop, the contention that the impugned order violates the resolution of 6th meeting is bereft of any substance. Since subsequent resolution is not questioned before me, therefore, I refrain from expression of opinion with respect to its legality or otherwise. Suffice it to say that the decision taken in 6th IMPA meeting no more governs the field. Needless to say that this observation shall not debar the Executive Council to reiterate its earlier decision taken in the 6th Meeting, if the exigencies of situation demand so.

(3.) NEXT it was contended by learned counsel for the petitioner that the petitioner was relieved whimsically and arbitrarily in contravention of rules which has the effect of rendering the impugned order of transfer liable to be quashed. This argument calls for consideration in the light of observations of the Division Bench made in LPA No. 47/2000, decided on 1.8.2000. The relevant portions may be extracted: "....We at this stage do not propose to go into the question whether the relieving of the respondent (Writ petitioner) was in accordance with Rules or not. The fact remains that the order impugned in the writ petition was implemented. If the relieving was not in accordance with law, that can be argued before the learned Single Judge...." ".....This appeal is disposed of accordingly alongwith the connected CMPs. We, however, leave it open to the respondent to satisfy the learned Single Judge in course of the hearing of the writ petition, if he so desires that the implementation of the order was not in accordance with the rules...."