Shahid Qayoom vs Ut Of J&K And Others
2021 Latest Caselaw 1286 j&K

                                                                      Sr. No. 4

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                WP(C) No. 2084/2021
                                                CM No. 7627/2021

Shahid Qayoom                                                      .....Petitioner(s)

                       Through: Mr. F. S. Butt, Advocate

                 Vs

UT of J&K and others                                             ..... Respondent(s)

                       Through:

Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                    ORDER

12.10.2021

(OPEN COURT)

Per: Thakur-J

01. The petitioner is a Patwari, who was initially recruited for District

Kishtwar. Subsequently, the petitioner was transferred to District Doda, on the

request of the petitioner. This order was passed on 17.01.2013 by way of a

mutual transfer between the petitioner-Shahid Qayoom and Mohasin Bashir

Sheikh, who was transferred to District Kishtwar in place of the petitioner. The

petitioner had continued to serve in District Doda ever since.

02. Cause of action accrued to the petitioner when the official respondents

took a policy decision and issued an order dated 09.03.2015, whereby all

Patwaris working outside their districts were sought to be repatriated to their

parent districts, from where they had been initially appointed. The order dated

09.03.2015 specifically stated that on account of the transfers of Patwaris

outside their parent districts, implementation of various welfare schemes

announced by the Statement Government and the Government of India were

being affected. It was also observed in the said order that the Patwaris had

managed their postings and transfers outside their districts, which was also

against the rules.

03. Reference in this regard can also be made to Section 23 of the

Jammu & Kashmir Civil Services Decentralization & Recruitment Rules,

2010, which is reproduced hereunder:-

"23. lntra and inter-cadre transfers-

A member of the State, Divisional or District cadre shall be transferable only within his own cadre and shall in no case be transferable from one Divisional cadre to another Divisional cadre or District cadre, or from one District cadre to another District cadre or Divisional cadre post:

Provided that for posts in Leh and Kargil Districts, notwithstanding any other provision contained in these rules, members of any of the State, Divisional or District cadres may be transferred for such tenure as the Government may deem appropriate from time to time. In all such cases the lien and promotion prospects of such members shall be protected in their parent cadre."

04. It is based upon the aforementioned order that the petitioner was

sought to be repatriated back to the District Kishtwar, then the writ petition

came to be filed by the petitioner before this Court bearing SWP No. 793/2015,

which was subsequently dismissed as withdrawn by virtue of order dated

06.03.2020, when a statement was made by the learned counsel for the

petitioner that the petition was rendered infructuous. Notwithstanding the

statement so made and the withdrawal of the writ petition, another order came to

be passed vide order dated 02.09.2021, whereby the petitioner was again sought

to be repatriated to the parent District Kishtwar, which again gave a cause of

action to the petitioner to challenge the same before the Central Administrative

Tribunal at Jammu.

05. By virtue of order impugned dated 17.09.2020, the Tribunal refused

to grant any relief in favour of the petitioner, primarily on the ground that the

grant of interim relief at that stage would amount to granting the main relief.

Reliance was placed upon the Apex Court judgments in case titled Assistant

Collector Vs. Dunlop India Ltd., AIR 1985 S.C. 330, R.R. Sinha Vs. Inder

Krishan Raina & others, 1996 SCC (1) 681 and State of Uttar Pradesh Vs. Ram

Sukhi Devi, AIR 2005 SC 284.

06. Learned counsel for the petitioner states that the view expressed by

the Tribunal in refusing to grant interim relief was perverse in law, inasmuch as,

it had failed to discuss minutely the facts, which would then suggest that the

petitioner did have a prima-facie case for grant of an interim relief. It was stated

that the Tribunal had also failed to notice the ratio of the judgment in case titled

"Deoraj Vs State of Maharashtra," reported in (2004)4 SCC 699, wherein in

paragraph 12 the Apex Court held as under:-

"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing

there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent."

07. It was, therefore, suggested that merely because the interim relief

would amount to granting a final relief would not by itself justify refusal for

such a relief, if it was otherwise necessary to protect the interest of the petitioner

in the facts and circumstances of that particular case.

08. On a question of principal of law, there is no doubt that the Tribunal

or the Court does have the power to grant interim relief, notwithstanding the fact

that it may have the affect of granting the final relief. However, in that case, the

petitioner must show and establish a very strong prima-facie case of the standard

much higher than just a prima-facie case. It must also prick the conscience of the

Court refusing interim relief in such a case would do violence with the sense of

justice and that it would cause injustice to be perpetuated on the petitioner,

which would be incapable of being remedied.

09. The Tribunal, it appears has been persuaded to deny relief only on the

first proposition but has failed to even notice the ratio of the judgement in

Deoraj's case that the Court or the Tribunal does have the power to grant interim

relief provided the Tribunal draws satisfaction that irreparable injury and

injustice would be perpetuated if such a relief was refused. Notwithstanding the

absence of reasoning in line with the ratio of judgement of the Apex Court in

Deoraj's case, we can see that the issue was one pertaining to a simple case of

repatriation of the petitioner back to his parent cadre, which was District

Kishtwar. The decision taken as early as in the year 2015 was a policy decision

and not taken individually in the case of the petitioner. Similarly situate persons,

as the petitioner would have been repatriated pursuant to the aforementioned

Government order.

10. What was stated to be urged was that the repatriation order was

implemented partially because one Mohasin Bashir Sheikh, who was transferred

in place of the petitioner in District Kishtwar had not been touched, therefore,

the policy could not be implemented in bits and pieces. The issue before us

today is not whether Mohasin Bashir Sheikh's retention in District Kishtwar is

justified or not. Needless to say that in case the policy is implemented, it should

apply to one and all equally.

11. Having considered the matter, we feel that this is not a case, where

one could have at all come to a conclusion that there was a case at a pedestal

higher than a prima-facie case or that in case the interim relief was not granted,

it would lead to injustice to the petitioner, which would otherwise prick the

conscience of the Tribunal or the Court.

12. In our opinion, no case is made out for interference with the order

impugned. This petition is found to be without any merit and is accordingly,

dismissed, along with connected application.

                                              (Puneet Gupta)                   (Dhiraj Singh Thakur)
                                                  Judge                               Judge
              Jammu
              12.10.2021
              Muneesh

                                             Whether the order is speaking :        Yes / No
                                             Whether the order is reportable:       Yes/ No




MUNEESH SHARMA
2021.10.21 15:48
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