AB AHAD Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition u/s 103 of the Constitution of Jammu and Kashmir and the petitioner has prayed in this case for the quashing of the order dated 3 -8 -1972 passed by the respondent No. 2 by which he has been reduced in rank and by the same order he has been also transferred from the State cadre to the Divisional cadre. The petitioner has also prayed for a writ of mandamus directing the respondent to restore the petitioner to his original post of Superintendent in the office of the Director of Rakhs and Farms with full benefits.

(2.) THE relevant facts which have given rise to this present application briefly stated are as follows : - The petitioner being the senior -most senior clerk in the office of the Director Rakhs and Farms, Srinagar, was promoted to the post of Superintendent in the scale of 140 -300 by virtue of an order of the Director of Rakhs and Farms vide Order No. 799 -88/RF dated 27 -11 -71 which is Annexure ËœAâ„¢ to the petition. This order was passed by Mr. H. S. Mann who was the Director of Rakhs and Farms at that time. Subsequently Mr. O. P. Khajuria who is respondent No. 2 took over charge as Director of Rakhs and Farms and also as the Director of Agriculture in addition to his own duties from the aforesaid Mr. Mann. It is alleged by the petitioner that Mr. Khajuria somehow or other became hostile to the petitioner and therefore he passed an order vide order No. 142/E of 1972 dated 3 -8 -1972 which is Annexure ËœBâ„¢ to the petition. In this order the petitioner has been described as a senior clerk in the Direction Office, Rakhs and Farms Department Srinagar and he has been transferred and posted as a senior clerk in the Office of the Dy. Director Mushroom, Lalmandi, Srinagar. This aforesaid order has been attacked by the petitioner on the ground inter alia :

(3.) RESPONDENT No. 2 filed a counter affidavit in which inter alia it has been urged that the petitioner has not stated the true facts in his petition. The petitioner by misrepresentation got an order passed by Mr. Mann, the then Director of Rakhs and Farms on 27 -11 -1971, which was only three days before he made over charge. The order contained in Annexure ËœAâ„¢ to the petition by which the petitioner was promoted also shows that he had been functioning as a Superintendent since 17 -8 -1967 but respondent No. 2 in his counter affidavit has stated that this was not factually correct and if it was so then there would have been no necessity of passing the order of promotion on 27 -11 -1971. It has also been stated in the counter affidavit that the post of the Superintendent had expired by efflux of time and reliance has been placed on certain letters which are Annexures to the counter affidavit which would show that the post of Superintendent was not in existence and it was an inoperative post. It was therefore urged in the petition that the impugned order dated 3 -8 -1972 was only a rectification of a serious error which had been committed and that in such circumstances no question of reduction of rank arises and the provisions of Art. 226 consequently are not attracted.