Nisar Ahmad Wagay vs UT Of J&K & Ors.

Prasant Kumar, Member (Admn.) :- The applicant is aggrieved of retaining and not shifting / transfer of his lien from Baramulla district to Bandipora district where he is posted after inter-district transfer on mutual basis and thereafter his reversion / demotion / withdrawal of the placement order of the applicant as in-charge Laboratory Assistant and reverting him to the post of Laboratory Bearer making him suffer immeasurably.

The applicant through the instant application prays for the following reliefs –

The applicant has also prayed for the following interim relief –

The Ld. Counsel for the applicant submits that the applicant was appointed as a Class IV employee vide order no. 153/DCB of 2008 dated 3.5.2008 in the erstwhile district of Baramulla on the available post of peon in Boys Higher Secondary School, Dangerpora, Sopore. However, subsequently the applicant was re-adjusted as Laboratory Bearer vide communication no. Estt/SIC/34944 dated 19.1.2009. From the erstwhile district Baramulla a new district Bandipora was carved out in the year 2007 which became functional from the year 2009.

The applicant submits that due to bifurcation of the erstwhile district of Baramulla all the district cadre employees belonging / domicile of the newly created district were shifted to their domicile district along with all service particulars / lien. However, the applicant, a domicile of the newly created district, was surprisingly not shifted to the new district and was retained in Baramulla district. This was despite Government order GAD(Adm) 65/2012-1 dated 10.7.2012 vide which instruction were issued with regard to transfer / adjustment of officials who were appointed against district cadre posts in the erstwhile districts and are posted in the newly created districts and vice versa but this was not acted upon with respect to the applicant.

Ld. Counsel for the applicant submits that in the year 2015, the applicant was transferred from Baramulla on mutual transfer basis vide Government order no. 351-Edu of 2015 dated 22.7.2015, from BHSS Goshbugh, Baramulla to HSS Hajin, Bandipora, retaining the lien in parent district, i.e. Baramulla. Applicant submits that the said order was outcome of political favoritism to accommodate the other candidate figuring in the said Government order and the applicant had never been taken into confidence and had never consented for the same. To this the applicant represented before the respondents to shift him with all service particulars / lien to his domicile district Bandipora but it was not done and he is still suffering as he still does not hold lien to the said post.

Upon posting and assumption of duties by the applicant in the District Bandipora, his seniority was settled in this district in the seniority list of Class IV employees and based on his seniority, suitability, performance and other requisites and subject to sanction by DPC, vide order no. 36/DSEK/of 2020 dated 22.1.2020, the applicant was placed as I/c Lab Assistant along with 8 other Class IV employees in their own grade and pay for a period of six months or till the post is filled up on regular basis by DPC, whichever is earlier.

Ld. Counsel for the applicant submits that despite submitting several representations the lien of the applicant has not been transferred / shifted to District Bandipora. In this connection the applicant has enclosed various intra-departmental communications including communication no. DSEK/NT/Trans/02/2016/Bpr/493 dated 1.7.2021, from Director, School Education, Kashmir to the Principal Secretary to Government, School Education Department, to issue necessary instructions / orders with regard to his repatriation to parent district (Bandipora) together with lien and promotion in light of GAD OM No. GAD(Adm) 65/2012-1 dated 10.7.2012. However, the applicant is still waiting for his orders. Instead, the respondent Director, School Education Kashmir, vide his communication no. DSEM/NT/Trans/19/845-2013/Bla/697-98 dated 16.3.2022 directed the Chief Education Officer, Bandipora not to issue any confirmation order in respect of the applicant till the matter regarding retaining / transferring of his lien is decided.

Aggrieved, the Ld. Counsel for applicant submits that the applicant filed OA No. 256 of 2022 before the Central Administrative Tribunal which was disposed of on 27.4.2022 with a direction to the respondents to treat the OA as representation and dispose of the same by passing a reasoned and speaking order and till the passing of the speaking order no action on order dated 16.3.2022 shall be taken.

Ld. Counsel for the applicant further submits that the Director, School Education, Kashmir, vide his order no 21-DSEK of 2023, dated 21.1.2023 withdrew the placement order issued in favour of the applicant as Lab Assistant, ab initio. The Chief Education Officer, Bandipora, vide his order dated 14.3.2023, transferred / adjusted the applicant in HSS Gadakhud against the available lower post of Lab Bearer. Aggrieved, the applicant filed OA No. 245 of 2023 before this Tribunal, however, the same was withdrawn.

The Ld. Counsel for the applicant has put forward grounds in support of his submissions, which inter alia, include –

To buttress his arguments, the Ld. Counsel for the applicant has also placed two judgments of the Hon’ble Supreme Court although he has neither highlighted the relevant para nor given the para no. on which he is placing reliance on. In the case titled Union of India Vs. E.G. Mambudri, AIR 1991 Supreme Court 1216, the Hon’ble Court has observed that the purpose of the rules of natural justice is to prevent miscarriage of justice and the same are applicable to administrative orders if such orders affect the right of a citizen. Generally, this principle requires that opportunity of hearing should be given to the person against whom an administrative order is passed. In another case, titled as State of Jammu and Kashmir Vs. Mir Gulam Rasul, 1961 SCR (3) 969, the Hon’ble Supreme Court observed that it is not the respondent’s case that other servants of the appellant had been given the benefit of those rules and such benefit has been designedly denied only to him.

Per contra, the respondents submit that the applicant and one Mtr. Rubina Jan, who was working as Lab Bearer in Bandipora district, approached the Administrative Department for their inter-district transfer on mutual basis and the same was acceded and the two were transferred on mutual basis vide Government order no. 351 Edu of 2015, dated 21.7.2015 and their lien and promotion prospects were retained in their respective parent district cadre, meaning thereby that their promotion was to be considered in their respective districts. Inclusion of the applicant in the seniority list of the district Bandipora was erroneous as the feedback from the Principal HSS Hajin did not mention about the transfer of the applicant and Mtr. Rubina Jan on mutual basis and retention of his / her lien and promotion prospects at their parent district, i.e. Baramulla and Bandipora respectively. Moreover, the applicant was not due for promotion but was erroneously promoted. The seniority of Mtr. Rubina Jan was later fixed in her parent district Bandipora where her lien was retained.

The Ld. Counsel for the respondents submit that as the applicant was erroneously promoted in the district Bandipora, the Chief Education Officer, Bandipora was directed not to issue confirmation order in favour of the applicant till the case of transfer / retention of his lien was not decided. The claim of the applicant was rejected by the order passed in pursuance to the orders of this Tribunal passed in OA No. 256 of 2022.

The respondents, in response to CAT Order dated 19.7.2024, again submitted their reply affidavit vide which they reiterated the position as submitted earlier. They also aver that the seniority of the applicant was fixed at the appropriate place, i.e. at serial no. 243, in the final seniority list of Class IV, updated on 1.1.2024, in the district cadre Baramulla. This realignment has corrected the earlier administrative error, ensuring his lien and promotional prospects are in line with the original terms and conditions of the mutual transfer.

Heard Ld. Counsel for the Parties and perused the records before us.

In a nutshell, the applicant has requested for quashment of the consideration order passed in compliance to the orders of this Bench of CAT, to shift the lien of the applicant from Baramulla district to Bandipora district where the applicant is presently discharging his duties, restore the promotional position of the applicant to Lab Assistant from the date he has been promoted as has been done for similarly situated Lab Assistants and give him all consequential benefits from the said date, place him in the seniority list at appropriate place.

In the instant case, there are two issues before us for adjudication –

The mutual transfer order no. 351-Edu of 2015 dated 22.7.2015, issued by Administrative Department under the signatures of Commissioner / Secretary School Education Department reads –

Perusal of the transfer order of the applicant on mutual basis, dated 22.7.2015, makes it very clear that the applicant’s lien was retained in the district Baramulla along with his promotion prospects. No document / order / communication has been placed before us indicating the applicant challenged the conditions as mentioned in the said mutual transfer order nor there is any document available indicating any change in the two conditions, i.e. retention of lien and promotion prospects in their parent cadre, by the competent authority or court(s). Thus, it can be inferred that the applicant is bound by these two conditions upon his posting in the district Bandipora. Moreover, the other employee in the mutual transfer order, Mtr. Rubina Jan, moved an application for fixing of her seniority in Bandipora district, from where she had been transferred out, leading to discovery that the applicant had been promoted in Bandipora district which was not in line with the terms and conditions as mentioned in the mutual transfer order.

The placement order no. 36 DSEK of 2020 dated 22.1.2020of Class IV as I/c Laboratory Assistant, reads - “Pending vigilance clearance and subject to the ratification by Departmental Promotion Committee, sanction is hereby accorded to the placement of 09 (nine) Class IV employees of District Bandipora ………..as I/c Laboratory Assistant in their own pay and grade for a period of six months or till the post is filled up on regular basis by DPC, whichever is earlier”.

Operative para of the Order No. 21 DSEK of 2023, dated 21.1.2023, issued by Director, School Education, Kashmir, reads –

Based on the above, in our considered opinion, the applicant cannot claim that he has been discriminated upon as other eight employees were placed as I/c Lab Assistants while his placement as Lab Assistant, was withdrawn ab initio as the applicant was not similarly situated with others as his transfer on mutual basis to Bandipora district was without transfer of his lien and his promotional prospects remained in Baramulla district itself.

So far as non-transfer of the applicant to the domicile district of Bandipora along with his lien, as envisaged in the GAD OM no. GAD(Adm) 65/2012 dated 10.7.2012, is concerned, perusal of the records before us reveal that the respondents are still to take a decision on various representations submitted by the applicant. Perusal of records also reveal that the case of the applicant has already been sent to the Administrative Department by the Director, School Education, Kashmir vide his communication no. DSEK/NT/Trans/02/2016/Bpr/493 dated 1.7.2021 but apparently a decision is yet to be taken on the same even after lapse of more than three years.

As the promotion of the applicant was not in line with the conditions mentioned in the transfer order on mutual basis, i.e. retaining the lien and promotion prospects of the applicant in Baramulla district, and that this order was neither challenged nor it was varied by competent authority or any competent court of law and hence it holds ground as on date. Therefore, we do not find any reasonable ground to interfere in the order No. 21 DSEK of 2023, dated 21.1.2023, issued by Director, School Education, Kashmir vide which the placement order as in-charge Lab. Assistant issued in favour of the applicant was withdrawn ab-initio and order no. CEO/Bpr/Leg/NT/023/934-96 dated 14.3.2023, issued by the Chief Education Officer, Bandipora, vide which the applicant was adjusted in HSS Gadakhod against the available post of Lab Bearer. At the same time, we also feel it expedient to direct the respondents to consider various representations submitted by the applicant for the transfer of his lien to his domicile district Bandipora from Baramulla taking into account GAD OM No. GAD(Adm) 65/2012 dated 10.7.2012 expeditiously and pass a reasoned and speaking order, preferably within eight weeks from the date a copy of this order is served upon the respondents. Rules of Natural Justice shall be followed in letter and spirit while passing the order as above.

Disposed of along with connected MAs, if any. No orders as to costs. Interim orders, if any, stand vacated.

Sd/- sd/-(Prasant Kumar) (D.S.Mahra) Member(Admn.) Member(Judl.)

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