Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Anr vs Nazir Ahmad Ganai And Anr on 27 February, 2024
Bench: Chief Justice, Wasim Sadiq Nargal
Sr. No. 2
Regular
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPASW No. 178/2016
State of J&K and Anr ...Petitioner(s)/appellant(s)
Through: Mr. Hakim Aman Ali, Dy. AG.
Vs.
Nazir Ahmad Ganai and Anr ...Respondent(s)
Through: Mr. Shafqat Nazir, Advocate., R-1
Mr. Zaffar Shah, Sr. Advocate, with
Mr. A. Hanan, Advocate, R-2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
O R D E R (ORAL)
27.02.2024
N. Kotiswar Singh - CJ
1. A peculiar problem has arisen in this appeal as we are dealing with
the appointment that was accorded in December, 1999 in respect of
respondent no. 3 before the Writ Court, who is respondent no. 2 herein, as an
Assistant House Keeper in Hospitality and Protocol Department, to which the
writ petitioner, who is respondent no. 1 herein, was also an aspirant.
2. The learned Single Judge, in the order dated 09.10.2015, took into
account that the appointment of respondent no. 2 herein had been continued
undisturbed almost for 16 years. Consequently, the learned Single Judge
declined to interfere with her appointment at the instance of respondent no. 1
herein.
3. The learned Single Judge also considering that the respondent no. 1
herein was also seeking appointment to the said post, had directed his
appointment by way of transfer to the Hospitality and Protocol Department in
the post for which he possesses the requisite qualifications. It is this order
which is challenged before us in this appeal by the Union Territory of J&K.
4. After hearing the parties and also as can be seen from the pleadings,
the present respondent no. 2 was appointed as an Assistant House Keeper in
Hospitality and Protocol Department in December, 1999 against a vacant
post. The same post was also being claimed by the present respondent no. 1,
who had approached this Court earlier by filing a writ petition being, SWP
No. 1040/1997. The said petition which was disposed of by the Writ Court on
03.02.1999 directing the authorities to consider the case of the petitioner
(respondent No. 1 herein) along with other eligible candidates against the post
of Assistant House Keeper as and when it becomes available with Hospitality
and Protocol Department of the State and the same shall be in accordance
with the J&K Subordinate Service Recruitment Rules, 1992.
5. According to the present respondent no. 1, despite the Court's
direction in SWP No. 1040/1997, which required considering the case of the
present respondent no. 1 and other eligible candidates, the authorities
proceeded to appoint the present respondent no. 2. This appointment became
the subject matter of challenge in SWP No. 2209/1999, out of which the
present appeal has arisen.
6. The learned Single Judge in the said SWP No. 2209/1999 though
cognizant of the fact that the said post was filled without advertising, but
considering the fact that the incumbent had already served for over 16 years,
invoked the principle of equity and declined to interfere with her appointment.
7. However, considering the fact that the present respondent no. 1 also
had a right to be considered for appointment to the said post for which he had
approached the Writ Court earlier as mentioned above, the Writ Court was
also inclined to grant certain benefit to him. The Writ Court observed that the
present respondent no. 1 was already working as a Field Operator in the
Fisheries Department. Keeping the said aspect in mind, the Writ Court vide
impugned order dated 09.10.2015 directed the authorities to appoint the writ
petitioner (respondent no. 1 herein) by way of transfer in the Hospitality and
Protocol Department on a post of which he is possessed of the requisite
qualifications within a period of four weeks.
8. As evident, the impugned order of the learned Single Judge passed on
09.10.2015 consists of two components. Firstly, it refrained from interfering
with the appointment of the present respondent no. 2 by invoking the
principle of equity in her appointment as the Assistant House Keeper in
Hospitality and Protocol Department. Secondly, the Court directed the
authorities to appoint the present respondent No. 1 by way of transfer to the
Hospitality and Protocol Department.
9. In the present appeal filed by the Union Territory of J&K, no
objection has been raised against the decision of the learned Single Judge not
to disturb the appointment of the present respondent No. 2. Similarly, the
present the respondent No. 1 also has not assailed the learned Single Judge's
decision to maintain the appointment the present respondent No. 2.
10. Thus, in the present appeal, what is being assailed essentially is the
direction issued to the authorities qua the writ petitioner, present respondent
No. 1, to appoint him by way of transfer in Hospitality and Protocol
Department on the post for which he possesses the requisite qualification on
various grounds including that it would involve change in cadre which is not
contemplated in law.
11. While we can understand the invocation of principle of equity to
protect the services of a person who has served for a significant long period of
time, even if the initial appointment may not be valid in terms of the statutory
rules, we however, are unable to accept the second direction issued by the
learned Single Judge to appoint the respondent No. 1 by way of transfer. The
learned Single Judge directed the present appellants, respondent therein, "to
appoint the petitioner by way of transfer in the Hospitality and Protocol
Department on the post for which he possesses the requisite qualification."
12. Such direction for appointment by way of transfer may not be in
conformity with the rules, inasmuch as, if there is any post in the Hospitality
and Protocol Department, it should typically be filled in terms of the
prescribed rules. Unless there is a provision in the service rules for
appointment to such post by way of transfer, the Writ Court could not have
issued any such direction.
13. Learned counsel for the present respondent no. 1 (writ petitioner
therein) submits that if the direction issued to the respondents (appellants
herein) to appoint him in the Hospitality and Protocol Department is
considered improper, then the Wirt Court's decision not to intervene and
protect the service of the present respondent no. 2 is also not proper,
inasmuch as, the appointment of the respondent no. 3 was dehors the rules. As
such, the entire judgment needs to be set aside, which is also a relief sought in
the appeal also.
14. Though the respondent No. 1 may legitimately make such
submissions, we are also mindful of the fact that, at this stage, the present
respondent No. 2 has already completed more than 23 years of service. As
pointed out by the learned Single Judge, there was no stay order on her
appointment after its issuance, and she continued her service uninterruptedly.
The learned Single Judge also made an observation that even after filing of
the writ petition, she was allowed to continue and if the appointment of
respondent No. 3, who is the present respondent No. 2, had been stayed, she
might have chosen to seek appointment elsewhere and the fact that her
appointment was not stayed was sufficient for her to entertain the reasonable
belief that it would be maintained, especially since it was not found to be
illegal initially at the time of issuance of notice motion.
15. The learned Single Judge also observed that consequently the
respondent No. 2 has been prevented from securing employment elsewhere
and at this distant point in time, she may not be in a position to secure
employment elsewhere, and she would have also surpassed the age limit for
obtaining the appointment elsewhere.
16. Considering the factual position and observation made by the learned
Single Judge, which do not appear to be unreasonable and unwarranted , we
are not inclined to interfere with the said decision of the learned Single Judge
to maintain the appointment of the present respondent No. 2.
17. However, with regard to the other direction of the learned Single
Judge which the Union Territory of the J&K has primarily assailed, we
concur with the counsel for the Administration that no such direction could
have been issued for appointment of the writ petitioner, respondent No. 1
herein, by way of transfer in the Hospitality and Protocol Department,
inasmuch as, that will also amount to violation of the statutory rules
governing appointments. If there is any provision in rules for appointment to
such a post through transfer or deputation, the respondent no. 1 would
certainly be at liberty to apply for the same. If any such request is made by the
respondent No. 1, the administration should duly consider his appointment
through transfer or deputation, as the case may be, subject to the service rules.
18. We express this with due consideration, and as also noted by the
learned Single Judge that the present respondent no. 1 is presently serving as a
Field Operator in the Fisheries Department. Although he has been deprived of
the opportunity for appointment to the post of Assistant House Keeper, he has
a viable means of livelihood through his present appointment as Field
Operator and hence we are not able to agree with the second direction of the
learned Single Judge qua the respondent No. 1.
19. Under the circumstance, we modify the order dated 09.10.2015 passed
by the learned Single Judge only to the extent qua the present respondent No.
1 that as and when there is any vacant post in the Hospitality and Protocol
Department to which the petitioner is also eligible to be appointed, the
Government can consider his appointment to such a post through
transfer/deputation, provided the rules permit, if the respondent No. 1 makes
such an application.
20. We have modified this order keeping in mind that it is primarily in the
domain of the executive to see in what capacity or manner the post is to be
filled up or utilized and if any such direction by the Writ Court dehors the
rules, the same may not be permissible in law.
21. With the above observations and directions, the appeal stands partly
allowed.
(WASIM SADIQ NARGAL) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
27.02.2024
Junaid
Whether the order is reportable Yes/No.
Whether the order is speaking Yes/No.
