Shabir Ahmad Gorsi vs Union Territory Of J&K And Others
2021 Latest Caselaw 1193 j&K

                                                                         Sr. No.62


         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU


                                                 WP(C) No. 2036/2021
                                                 CM No. 7521/2021


Shabir Ahmad Gorsi                                   .....Appellant(s)/Petitioner(s)

                        Through: Mr. G. S. Thakur, Advocate

                  Vs

Union Territory 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

27.09.2021 (Open Court) HIGH Per: Thakur-J COURT OF JAMMU &

1. The present writ Kpetition A S H Mhas I R been AND filed against the order dated

17.09.2021 passed by the CentralL Administrative ADAKH Tribunal, Jammu Bench.The

prayer of the petitioner for grant of interim relief against the order of his transfer

from Jammu to Shopian, has been rejected, primarily on the ground that grant of

interim relief in the case would amount to practically giving of principal relief

sought in the O.A which was impermissible under law.

2. With a view to arrive at that conclusion, the tribunal has relied upon

the judgement of the Apex Court reported in AIR 1985 S. C. 330, and in

particular para 5 which is reproduced hereunder:-

"We repeat and deprecate the practice of granting interim order which practically give the principal

relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations."

3. Reliance has also been placed upon 1996 SCC (1) 681titledP. R.

Sinha Vs. Inder Krishan Raina and others, wherein it was held by the

Hon'ble Apex Court that:-

"this court has pointed out repeatedly that while entertaining the writ petition the High Court should not pass interim order, the nature of which is to grant a relief which can be granted only at the final disposal of such writ petition."

4. Learned counsel for the petitioner states that the Tribunal had failed to

appreciate the real problem which was being faced by the petitioner and had H I GofHinterim relief. It is stated that the proceeded to reject the prayer for grant COURT petitioner was working as Patwari initially in Shopian but was transferred to OF JAMMU & Udhampur on account of security consideration inasmuch as the petitioner was KASHMIR AND L A Dand alleged to be an informer of the forces, A Ktherefore, H was on the hit list of the

militant organizations.

5. Learned counsel for the petitioner further stated that in an earlier

round of litigation, the petitioner had succeeded in the writ petition bearing SWP

No. 886/2015, which was decided by virtue of judgment and order dated

24.03.2015, in which too, the Single Bench of this Court had drawn a distinction

between a transfer made on security consideration and a transfer made on

account of administrative exigency.

6. On a perusal of the judgment and order dated 24.03.2015 it can be

seen that the writ court in the previous round of litigation had issued a direction

to the Administrative Department to accord consideration to the case of the

petitioner and pass appropriate orders.

7. Learned counsel for the petitioner states that even when the threat

perception continues, the official respondents without assessing the threat to the

petitioner, could not have transferred him back from Jammu to Pulwama.

8. Heard learned counsel for the petitioner at length.

9. On the issue of threat perception being faced by the petitioner, it

can be seen that the petitioner's transfer from Shopian to Udhampur was

H I G Hof the Settlement Commissioner to primarily based upon the recommendation COURT the Financial Commissioner, wherein the security concern pertaining to the OF JAMMU & petitioner was highlighted in communication dated 22.08.2006. Much time has KASHMIR AND elapsed from the time when the aforementioned communication was issued till LADAKH date. The petitioner has failed to place on record any document which would

inspire confidence that the petitioner continues to face threat from militant

organizations. It needs to be pointed out that not only this, if there was any

threat perception still being faced by the petitioner, the authority concerned of

the revenue department would have got an information in that regard and would

have informed the concerned higher authorities based on inputs received from

the concerned field units of the police agencies/intelligence agencies as was

done earlier. This, however, does not appear to be so in the present case. In so

far as the view expressed by the Tribunal is concerned, it has rightly placed

reliance upon the Apex Court judgments supra, while passing the order

impugned.

10. Having heard learned counsel for the petitioner, we feel that we

cannot take a view different from the one taken by the Tribunal. However, in

case the petitioner succeeds in producing any document which would show that

the petitioner continues to face the threat even today, he shall be at liberty to

place it on record before the Tribunal.

11. Disposed of accordingly along with connected application.

                                    HIGH
                           (Puneet Gupta)                (Dhiraj Singh Thakur)
                               Judge                            Judge
Jammu                                COURT
27.09.2021
Shammi                            OF JAMMU &
                                KASHMIR AND
                          Whether the L A DisAspeaking:
                                      order      KH           Yes/No
                          Whether the order is reportable:    Yes/No