ADVOCATE GENERAL Vs. SUBASH CHANDER

JUDGEMENT

(1.) THESE three appeals under clause 12 of the Latters Patent, even though concluded by the admitted facts of the case in view of the clear and unambiguous stand taken by the State in the counter affidavit and the orders issued from time to time, yet raise an important constitutional point as to whether the Advocate General who is the first Law Officer of the Government appointed by it under Section 42 of the J&K Constitution can file in his own name appeal against the judgment by impleading the State and its functionaries, who have not only accepted but also implemented the same.

(2.) BEFORE the question can be answered a brief resume of the facts is necessary. The admitted position is that Subash Chander respondent No: 1 was borne on the establishment of Advocate General. Vide Government Order No: 391 -GD of 1986 dated 23.9.1986 Annexure A -l, he along with one P.S. Kotwal were transferred to the General Department along with his post and a substitute namely, Shri V.K. Rain a respondent No: 4 transferred to the office of the Advocate General along with his post. Subsequently, vide Government Order No. 602 -GD of 1986 (Annexure A -3) Shri Subash Chander respondent No: 1 was adjusted in the Finance Department. The Government Order No: 1309 -LD (A) of 1987 dated 17 -11 -1987 (Annexure -4) created the post of the Administrative Officer and a Section Officer in the Office of the Advocate General. Following this, appellant issued order No: AG -268 dated 21 -11 -1987 (Annexure -A 5) promoting Shri V.K. Raina, Head Assistant respondent No: 4 as Section Officer against the newly created post in the office of the Advocate General.

(3.) RESPONDENT No: 1 challenged the promotion of respondent No: 5 inter alia on the ground that respondent No: 5 who had been transferred to the office of the appellant along with his post is not borne on the establishment of the appellant and consequently his promotion as Section Officer on the newly created post was without jurisdiction and invalid as well. Before the writ petition was decided, the Government issued order No: 610 -GD of 1988 dated 19 -4 -1988 (Annexure -A -B) which reads: - In the interest of administration the following transfers/ adjustment of Head Assistants are hereby ordered with immediate effect: - a) Shri V.K. Raina, Head - Assistant presently posted in the office of Advocate General is transferred along with his post and adjusted in General Department (Trgs) vice Shri Ali Mohd. Rather, Head Assistant. b) Shri All Mohd Rather, Head Assistant General Department (Trgs) is transferred along with his post and readjusted in Special Tribunal. c) Shri S.C. Gupta, Head Assistant of Advocate Generals office presently working in the Finance Department is transferred along with his post and adjusted in the Law Department who will consider his promotion on proforma basis as Legal Assistant (S.G) (if otherwise eligible) against available post in the office of the Advocate General and post some incumbent in the said office vice Shri Gupta. All the transferees whose cadre has been changed shall retain their lien and promotion prospects in their cadres/department.