SYED KHURSHID AHMAD Vs. STATE OF J&K

JUDGEMENT

(1.) GOVERNMENT Order No. Edu. of 19S4 dated 13 -3 -1984 which indicates that adjustment and transfers were ordered by the Government in the interest of administration is impugned in this writ petition by the petitioner, The petitioner challenges the legality of this order on the ground that the order terms the petitioner as next senior most curator, which would suggest that the petitioner is junior to Mr. M. H. Makhdoomi, respondent No. 2 herein. It is submitted that no seniority list, final or tentative, has been prepared, therefore, declaration by the Government as regards the petitioners seniority is bad. It is also suggested that while ordering transfer, of the petitioners seniority also has been determined to his detriment which is not permissible. The petitioner states that he is senior must Curator and by showing him as Junior to Mr. Makhdoomi a way has been found out to transfer the petitioner to Leh, Reliance is placed on circular No: 36 -CD of 1983 dated 8 -8 -1983 which according to the petitioner seeks to regulate the procedure relating to transfer of employees to Leh and Kargil Districts, It is further stated that in order to check the Government from exercising arbitrary powers in the matter of transfer, the circular imposes certain restrictions on the arbitrary discretion of the Government with a view to regulating the procedure of transfers of Govt. employees. The circular, it is submitted is binding on the Government as it has force of law and any contravention of the circular will vitiate the order of transfer According to the annexure appended to the circular Junior most in a particular cadre alone can be transferred to Leh subject to the fulfilment of other conditions. The petitioner is stated to have been appointed as a Curator on 31 -12 -1977 in pursuance of recommendations of the Public Service Commission and Mr. Makhdoomls services were regularised on 31 -8 -1979. Therefore, the petitioner is stated to be senior to Mr. Makhdoomi.

(2.) THE writ petition is contested by the respondent. Mr. Makhdoomi in his reply affidavit, while controverting the pleas raised by the petitioner, has stated that the circular relied upon by the petitioner cannot create any enforceable right under law and the petitioner cannot get the same enforced as the same is not justiciable. In his parawise reply he has stated that the petitioner besides being Registering Officer Antigunetes at Srinagar in the Department of Archeology holds temporary charge of Assistant Director also. It is contended that the petitioner has withdrawn the civil suit which was filed by him in respect of the subject matter involved in the writ, petitioner is estopped from filing the writ petition and the writ petition is not maintainable on this ground alone. The petitioners contention about he being senior is controverted and various orders are referred to.

(3.) RESPONDENT No: 3, Showkat Ahmad Fazil also submitted his reply affidavit which is supported by the affidavit of respondent No. 4 Ajaz Ahmed Banday. It is stated that the circular lays down guide -lines for convenience of the subordinate staff under various heads of Departments and it cannot affect the plenary powers of the Government to affect the transfers in the interest of administration. In fact order of transfer is purely an executive function, which is not amenable to writ jurisdiction of the court. It is also stated that the impugned order does not deal with the question of seniority nor has it been passed on the basis of comparative seniority. It is further submitted that Mr. Makhdoomi was posted at Leh for more than three years and he was entitled to be transferred back. About Mr. Showkat Ahmad Fazil it is stated that he was posted in Jammu for more than four years and the post vacated by him in Jammu is to be filled by respondent Ajaz Ahmad Banday - Table of dates of transfers of the petitioner and respondents 2 to 4 is given and the impugned order is justified as being fair. The circular is stated to be unjusticiable.