Mushtaq Ahmad Ahanger vs State

The writ petition Nos. 3052/92,963/ 92 and 627/94 have been clubbed together as the controversy involved in these petitions pertains to the

same subject matter. As a matter of fact another petition bearing No. 1415/1991 was also clubbed with the said petitions, but was delinked by an

order of this court dated: 11.8.1994. By this common judgment I am disposing them of together. The facts and circumstances giving rise to filing of

the said petitions may be stated briefly here. Mushtaq Ahmad Ahanger was selected by the Divisional Recruitment Board for the post of Junior

stenographer in the Food and Supplies Department Srinagar on 2.1.1979, and came to be appointed to the said post by the Minister concerned

with effect from the same date. On 4.10.1985 the Government upgraded the said post and adjusted the petitioner as senior stenographer. He was

allowed to function as stenographercumPA, and for this purpose special pay was also allowed to him by the Director Food and Supplies. While he

was continuing on the said post, one Mohmmad Amin Khan came to be appointed as the Director, and he, for some reasons, known to him,

without any authority relieved the petitioner from his post, asking him to report to the General Administration Department for further posting. The

Government however did not agree with it and asked the Director to reconsider the matter. In the meanwhile he filed a writ petition bearing

No.963/92 in the High Court challenging the jurisdiction of the Director to transfer him. On 20.4.1992 it was directed by the court that the

petitioner shall be allowed to continue on his post till the matter was considered. The Director however despite the court order persuaded the

Government to alter its earlier order and managed his transfer along with his post to the office of the Deputy Commissioner Pulwama on

7.10.1992. The Director passed an order on 16.10.1992 adjusting the respondent No.3, Mushtaq Ahmad Kaloo, as PA/Stenographer, through

no such post was available there. The said respondent was working as typist in the Food and Supplies Department on daily wage basis and was

later on in 1990 adjusted as a storekeeper. On 23.2.1994 the Government retransferred the petitioner to the Directorate of Food and Supplies

Department along with his post with a direction that he shall not be assigned any work pending inquiry against him.

Now the short question for determination before the court arises as to who shall be allowed to work and function as the Stenographer/PA to the

Director Food and Supplies, Mushtaq Ahmad Ahanger or Mushtaq Ahmad Kaloo. Both of them have filed petitions in the court and obtained

certain interim directions.

The Counter/objections have been filed by the opposite parties in each case, which have been considered.

I have heard the learned counsel for the parties and have gone through the files thoroughly. Though the petitions have not been admitted to

hearing as yet, but they are finally disposed of at this very stage. The controversy is such that it can be resolved without formally admitting the

petitions to hearing.

Admittedly Mushtaq Ahmad Ahanger was appointed as Stenographer in the Directorate of Food and Supplies as far back as on 2.1.1979, after

proper selection by the competent authority. It is also admitted that in the said office there is only one post of stenographer and against that post

the petitioner stood appointed. Mushtaq Ahmad Kaloo has never been appointed as a stenographer by any competent authority. He is admittedly

a storekeeper in the same department and adjusted as such in 1980.

It appears that when Mohmmad Amin Khan got appointed as Director Food and Supplies Department, he did not like Mr. Ahanger, he

unauthorisedly and illegally relieved him from his post and asked him to report to the General Administration Department. The Government

however did not agree with it and sent him back. Mr. Ahanger did not belong to secretariat service, and could not be sent out from the Directorate

of Food and Supplies Department. However Mr. Khan managed his transfer to the office of the Deputy Commissioner Pulwama by the

Government. However he was transferred along with his post. With his transfer no post of stenographer remained in the Directorate of Food an

Supplies. Mr. Khan illegally adjusted Mushtaq Ahmad Kaloo, as Stenographer/PA in his office, losing sight of the fact that the Government had

transferred the said post to the office of the Deputy Commissioner Pulwama along with Mr. Ahanger. However when Mr. Khan got transferred

from the Directorate of Food and Supplies, the Government appears to have rectified its earlier mistake and retransferred Mr. Ahanger to the

Directorate of Food and Supplies. While retransferring him it has however been directed that he shall not be assigned any work pending disposal

of inquiry against him.

Now the question is that there is only one post of stenographer/PA in the Directorate of Food and Supplies, and how can two persons be

allowed to work and function against the same post. Admittedly two persons cannot draw the pay against one post, as that is administratively,

financially and legally invalid. Therefore it is to be seen as to who is that person who has legal right to hold the post of stenographer/PA in the

Directorate of Food and Supplies, and work and function against the said post.

From the perusal of record it is manifest that Mr. Ahanger is the person who was validly appointed as Stenographer/PA in the Directorate of

Food and Supplies and he has a right to hold the said post. He was dislodged from the said post unauthorisedly, and apparently on some malafide

considerations. There is only one post of Stenographer/PA available in the Directorate of Food and Supplies and therefore only one person can

hold the said post. Unless another post of a Stenographer is created in the said office, two persons cannot work against the same post.

Mushtaq Ahmad Kaloo has no right whatsoever to hold the post of stenographer. He has never been appointed as such by any competent

authority. No doubt the then Director Mr. Khan has appointed him as a

Stenographer but that appointment is without any basis. The post of the Stenographer was not at all available in the Directorate at that time as it

was transferred to the office of the Deputy Commissioner Pulwama alongwith Mr. Ahanger, by the Government. Mr. Kaloo was appointed as

storekeeper and continues to be so, though he has been made to work as a Stenographer by the then Director. He has no right to hold the post of

the Stenographer/PA and he was never appointed as such by any competent authority against any clear vacancy.

In these circumstances of the case the above mentioned writ petitions are disposed of with the direction that Mushtaq Ahmad Ahanger shall be

allowed to hold the post of Stenographer/PA and work as such in the Directorate of Food and Supplies. However if any inquiry is pending against

him, it shall be made in accordance with the law. The direction given by the Government that Mr. Ahanger shall not be assigned any work is nonest

in the eye of law and hereby quashed. After all a government servant not under suspension cannot be paid from the Government exchequer unless

he works against a post. His salary whatever due, and not paid for shall also be released for the said post. So far as Mr. Mushtaq Ahmad Kaloo is

concerned, he shall revert to his original post of the storekeeper. He has already filed a writ petition bearing No. 1415 of 1991, which has been

allowed to be continued and processed separately.

All the interim directions passed in the writ petitions and disposed of by this judgment shall stand vacated. However there shall be no order as to

costs. Files be consigned to records.

In this view of the matter, it would be just and proper to drop the contempt proceedings also, having arisen in the unfortunate circumstances of

the case. The rule if any issued shall stand discharged.