SUDERSHAN KUMAR Vs. DIRECTOR SERICULTURE (DEVELOPMENT) DEPARTMENT, JAMMU

JUDGEMENT

(1.) THE petitioners have averred that they are the permanent employees of the Sericulture Department of the Government of Jammu and Kashmir for the last 15 years. The department is governed by the Jammu and Kashmir Civil Service Rules and Regulations in all matters. The Government on 3rd of October 1963 constituted a Board called the Jammu and Kashmir Industries which was a State Government undertaking and which has a memorandum and Articles of Association. After the Board came into existence the then Sadar -i -Riyasat (now Governor) issued instructions by which 21 Industrial undertakings of the Government including - the Sericulture Deptt. of the State were entrusted to the Jammu & Kashmir Industries Ltd. It was governed by the Board of Directors. By a subsequent notification it was provided that the employees of the Sericulture Department who were entitled to pensionary benefits should be treated as employees of the Jammu and Kashmir Industries. The Government vide its order No. 337 -Seri/72 of 1972 dated 17 -7 -1972 has sanctioned the creation of a separate department named as Sericulture Development Department and the respondent has been appointed as Director Sericulture Development Department Jammu. Respondent vide his order No. 8265/8263 dated 5 -8 -72 has ordered the petitioners to report, themselves to the Senior Manager Filatures for duty which is working under the Jammu and Kashmir Industries Ltd. Respondent has absolutely no power to transfer a permanent employee from one department to another. The petitioners made a representation that the Sericulture Department is a regular Government Department, the filature wing has been transferred to a corporate body, therefore the State has no authority to change service conditions of its substantive employees without resort to the Constitutional and legal means. The order was bad in law and took away the earned rights of the petitioners illegally. They were permanent confirmed employees of the Sericulture Department and the transfer to the corporate body was not acceptable to them. The petitioners sought review of the impugned order by the respondent. The petitioners sent reminders. Thereafter the respondent issued letter No. 9016 .dated 20 -9 -1972 which was replied to by the petitioners in which the petitioners informed the respondent that they could not opt for the service as they were being illegally transferred because the same was a temporary one and that Article 52 -A K.C.S.R. had no application in their case. The deputation of the petitioners from permanent department and from permanent post to a temporary post and an temporary capacity was not covered by the Rules. The order of transfer was incompetent. The petitioners therefore seek the quashing of the impugned order on the following grounds : - (a) that they being permanent and confirmed employees holding substantive posts long before 1963 could not be transferred to temporary posts in a corporate body; (b) the respondent has got no power to transfer a permanent employee from his substantive post to a temporary post and to a temporary company; (c) Notification SRO -36 dated 11 -2 -66 amounts to termination of services of the petitioners or their removal from service and has been passed without complying with the mandatory requirements of the provisions of Section 126 of the State Constitution and is, therefore, invalid on this account; (d) the said notification doubtless results in a material reduction of the rank held by the petitioners to their transfer to the company and attracts section 126 of the Constitution ; (e) the aforesaid notification is invalid as being inconsistent with the provisions of Art. 207 of the K.C.S.R. as the procedure laid down in the Article has not been observed ; and (f) Note 6 of Article 52 -A of the K.C.S.R. is invalid being viola -live of Articles 14 and 16 of the Constitution of India. The petitioners therefore pray for a writ of certiorari quashing the impugned order asking the petitioners to report for duty to the Senior Manager Filature. The petition is supported by an affidavit. The grounds in the petition have been supplemented by a further application dated 21 -10 -72 in which it has been further averred that the Senior Manager Filature is not subordinate to the respondent. Respondent has got no jurisdiction over Senior Manager Filature and therefore could not transfer a permanent Government employee from a Government Department to an incorporate body.

(2.) IN his reply affidavit Shri K. L. Soni Director, Sericulture (Development) Department Jammu has sworn to the following facts: - He has averred that before 1963 the Development and Commercial activities of Silk Industry in the State of Jammu and Kashmir were carried on by the Sericulture Department of the State In 1963 the Development and Commercial Activities of Silk Industries were entrusted to the Management of the J&K Industries Private Ltd. The development activities of the Industries consisted of mulberry culture, seed production, Silk worm rearing and sericulture training and research. The Commercial activities consisted of running of silk filatures and disposal of silk yarn produced in the State. The petitioners in consequence of entrustment of the Management of Sericulture Department to Jammu and Kashmir Industries began working under the control of company in the year 1963. The Government of Jammu and Kashmir by order No. 3 -MD of 1972 dated 17 -7 -72 created two wings of the Silk Industry which was by then being run by the company. One wing was development wing which was assigned the task of Mulberry culture, and seed production, silk worm rearing and sericulture training and research. The commercial wing was to control and run silk filatures. The development wing was taken back by the Government of Jammu and Kashmir by the above order and the Commercial wing allowed to re -main with the above company. The nature of work which the petitioners have been doing while working under Jammu and Kashmir Industries Ltd. before 17 -7 -72 related to the Commercial wing. The petitioners have experience of the work. Keeping in view this fact the petitions who were under the control of Jammu and Kashmir Industries Limited were not taken in the Development wing with the result that they remained to work in the same way in which they had been doing since. After the above Government order the Development wing in Jammu province was to be run and controlled by the Director Sericulture Jammu (Development) Department and the Commercial wing was to be run and controlled by the Senior Manager Filatures. Before the issue of Government order No. 3 -MD of 1972 the Director Sericulture was as well functioning as Manager Sericulture controlling and running both the wings. After passing the above Government order the Director was put in -charge of the Development wing in Jammu province and was designated as Director Sericulture (Development) Department Jammu. The charge of commercial wing was handed over by him on 9 -8 -1972. The petitioners were not included in the development wing. To remove any doubt in this respect the impugned order was issued by him directing the petitioners to report for duty alongwith records of commercial wing to the Senior Manager Filatures. By this letter they were only told the place where they had to work. Whatever change took place about the working of the petitioners was before the passing of Government Order No. 3 -MD of 1972 dated 17 -7 -1972.

(3.) THE petitioners filed a rejoinder to the reply affidavit of the respondent An additional affidavit was also filed by Mr. K. L. Soni, Director Sericulture (Development) Wing in which it has been reiterated that the work assigned to the petitioners related to the Commercial wing. There is no work for the petitioners in the Development wing. The petitioners continue to serve under Jammu and Kashmir Industries Ltd. Their conditions of service remain uneffected by the impugned order, There is no mala fides in the said order By Government order No, 3 -MD of 1972 the Development Wing under the Company having been withdrawn from the same and having been replaced by the Jammu and Kashmir Government with effect from 20th July 1972 the result was that the posts in the said development wing which are described in Schedule III annexed to the order were also withdrawn from the company and replaced with the Government, The names of the petitioners did not exist in Schedule II to the above order As organisational change had taken place the names of the petitioners were not included in Schedule III, therefore the impugned order was passed to inform the petitioners as to where and under whom they had to work. The order was necessary to be made with a view to remove any doubt and also because the deponent had to handover the charge of the commercial wing.