MIR NAJIB ULLAH Vs. AB AHAD BHAT

JUDGEMENT

(1.) THIS order will dispose of LPA bearing No. 5 of 1998, titled above. The brief facts which have given rise to the instant LPA are that the order bearing No. 241 -UEED dated: - 1 -10 -1997, hereinafter referred to as order of transfer1 has been passed by the Government which required the appellant and the respondent No.1 to exchange their places of posting The respondent No 1 herein has assailed the order of transfer through the medium of writ petition bearing SWP No. 3953 of 1997, titled Abdul Ahad Bhat versus State of Jammu and Kashmir and others. The matter came up for consideration before the writ court on 9 -10 -1997, the respondents were put on notice in the main writ petition, notice was issued in the CMP also with an interim direction, which is reproduced hereunder - LC for the petitioner submits that petitioner is a member of the service of Public works department and appears at serial No, 72 of the seniority list maintained by the said department He was transferred by the Government to UEED department and, thereafter transferred to the Lakes and Water Waste Development Authority Srinagar, which is an autonomous body according to the petitioner He submits that he can be transferred only by the appointing authority, i.e. Public works department The petitioner has been transferred by the impugned Government order No 241 -UEED/97 dated 1.10.1997 issued by the Additional Secretary to Government, Housing and Urban Development Department, who is not the appointing authority of the petitioner therefore, the impugned order appears to have been issued without notification, Notice: returnable within three weeks Notice in the CMP also returnable within the same period for filing objections in the meantime, the implementation of the impugned order is stayed till date if not already impugned.

(2.) ADMIT .

(3.) WE have heard learned counsel for the parties at length Mr. R.A. Jan learned counsel for the appellant submitted that the transfer is an incident of service and not a condition of service and the order of transfer has been passed by the competent authority consistent with the provisions of Rule 27 of Classification, Control and Appeal Rules therefore not open to judicial interference under writ jurisdiction of the court !t is also canvassed that the order of transfer has been issued on 1 -10 -97 and the appellant joined his new place of posting in terms of order of transfer on 3 -10.1997, consequent upon which the respondent No 1 was relieved on 7 -10 -1997 According to the learned counsel for the appellant the order of transfer was implemented on 3 -10 -1997. therefore the interim direction passed by the writ court on 9 -10 -1997 is of no consequence, because the operation of the order of transfer was stayed till next date if not already Implemented