Srinagar- Observing that it is primarily in the domain of the executive to see in what capacity or manner a particular post is to be filled up or utilized, the High Court of J&K and Ladakh has disapproved appointment by transfer.
A division bench of Chief Justice N. Kotiswar Singh and Justice Wasim Sadiq Nargal made the observations while dealing with a “peculiar problem” in an appeal filed by the government of J&K against order by the court’s single bench in 2015.
“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 (namely P Kor), as an Assistant Housekeeper in Hospitality and Protocol Department, to which the writ petitioner, who is respondent no. 1 herein(namely N A Ganie), was also an aspirant,” the Division Bench said.
The court’s Single bench in the order dated 9 October 2015 took into account that the appointment of P Kor had been continued undisturbed for almost 16 years. Consequently, the Single Judge declined to interfere with her appointment at the instance of N A Ganie.
The Single Judge, also considering that N A Ganie was also seeking appointment to the 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 was this order which had been challenged before the Division Bench in this appeal by the Union Territory of J&K.
“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 (N A Ganie) by way of transfer,” the court said, adding, “The learned Single Judge directed the present appellants (government)….to appoint the petitioner (N A Ganie) by way of transfer in the Hospitality and Protocol Department on the post for which he possesses the requisite qualification.”
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, the court said.
Unless there is a provision in the service rules for appointment to such post by way of transfer, the court said, the Writ Court (Single Bench) could not have issued any such direction.
“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 (N A Ganie) 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,” the Division Bench said, adding, “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.”
Follow this link to join our WhatsApp group: Join Now
Be Part of Quality Journalism |
Quality journalism takes a lot of time, money and hard work to produce and despite all the hardships we still do it. Our reporters and editors are working overtime in Kashmir and beyond to cover what you care about, break big stories, and expose injustices that can change lives. Today more people are reading Kashmir Observer than ever, but only a handful are paying while advertising revenues are falling fast. |
| ACT NOW |
| MONTHLY | Rs 100 |  |
| YEARLY | Rs 1000 | |
| LIFETIME | Rs 10000 | |
