Wali Mohd vs State Of Jammu & Kashmir And Others

Sanjeev Kumar, J

The petitioner is aggrieved of the order issued by respondent No.3 vide his No.CEO/Rsi/Estt/4665-66 dated 15.07.2019, whereby the transfer of the

petitioner from Middle School, Kharoge Zone Arnas to Middle School, Lasooli Zone Arnas vice Mr. Khushi Mohd. made by respondent No.3 on

11.07.2019 has been cancelled.

The short grievance of the petitioner, as projected in the writ petition, is that the petitioner who had been serving in the Middle School, Kheroge

since 06.09.2017 was transferred to Middle School, Lasooli zone Arnas by respondent No.3 vide his order No.CEO/Rsi/ESTT/4665-66 dated

11.07.2019. He claims that in compliance to the aforesaid order, he also joined in Middle School, Lasooli on 12.07.2019. Respondent No.3 without any

reason or justification issued the impugned order dated 15.07.2019 cancelling the earlier order of transfer issued by him despite the fact that the earlier

order of transfer of the petitioner dated 11.07.2019 had been fully implemented. The petitioner assails the order impugned primarily on two grounds,

viz. (i) the order impugned whereby the order of transfer of the petitioner dated 11.07.2019 has been cancelled is not speaking and does not spell out

reasons for withdrawing the transfer order of the petitioner within four days and (ii) that his transfer made by respondent No.3 vide order dated

11.07.2019 could not have been withdrawn only with a view to accommodate respondent No.5.

Heard learned counsel for the petitioner and also Mr. Ravinder Gupta, learned AAG appearing for the respondents who was incidentally present in

the Court.

It was pointed out by the learned counsel for the official respondents that the order dated 11.07.2019 passed by the Chief Education Officer, Reasi,

whereby the petitioner was transferred to Middle School, Lasooli was without jurisdiction as respondent No.3 had not obtained the prior approval of

respondent No.2, which is mandated under SRO 479 dated 19.10.2018. On the strength of SRO 479 of 2018, learned counsel appearing for the official

respondents urges that all transfer proposals with respect to district cadre non-gazetted employees within the District and Divisional cadre non-

gazetted employees within the Division are required to be processed and submitted to the HOD for approval and it is only after the approval is granted

by the HOD, the order can be issued by the District Level Officer of the department with respect to the district cadre non-gazetted employees within

the district and divisional head of the department with respect to the divisional cadre non-gazetted employees within the division. He, therefore,

submits that the order passed by the Chief Education Officer, Reasi, who is a district level officer of the department without seeking approval of the

head of the Department i.e. Director School Education, Jammu was not in conformity of the provisions of SRO 479 of 2018 and, therefore, he was

correct in realizing his mistake and withdrawing the order, which he did in terms of order dated 15.07.2019, impugned in this petition.

Learned counsel for the petitioner, however, submits that once the order of transfer is implemented, the same cannot be cancelled. Reliance in this

regard has been placed by the learned counsel for the petitioner on a Division Bench Judgment of this Court dated 06.07.2017 passed in LPAOW

No.94/2017.

I am not persuaded to accept the plea of the petitioner for the simple reason that the order of transfer which the petitioner claims stood

implemented on 12.07.2019 was an order without jurisdiction and, therefore, the respondent No.3 was well within his right to withdraw the same.

Implementation of an order which is without jurisdiction cannot be a ground to claim that the same cannot be cancelled or withdrawn, rather, if the

order passed by an authority is without jurisdiction, the same is required to be necessarily cancelled or withdrawn. The provisions of SRO 479 of 2018

are very specific and the power of transfer delegated to respondent No.3 is not absolute but conditional. He can transfer a district cadre non-gazetted

employee of his department but only after his proposal is approved by the HOD i.e. Director, School Education, Jammu.

For the foregoing reasons, I find no merit in the writ petition, same is accordingly, dismissed. However, keeping in view the fact that the petitioner is

retiring in April, 2010, it would be appropriate, if his request for his posting in his native place i.e. Middle School, Lasooli is considered by the

respondents favourably.