Yogesh Chandra Pathak @APPELLANT@Hash Nirbhay Trehan

In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir, the petitioner has sought the indulgence of this Court in granting him the following relief(s):

i. "By issuance of writ, order or direction, one in the nature of Certiorari, the order impugned dated 8-5-2018 be quashed;

ii. By issuance of writ, order or direction, one in the nature of Mandamus, the respondents be commanded to treat the petitioner on the same analogy as in case of 26 persons and two persons who are similarly situated with that of the petitioner;

iii. Any other writ, order or direction as may be deemed fit and proper under the circumstances of the case may also be passed in favour of the petitioner and against the respondents."

In order to appreciate the controversy involved in the matter, the facts of the case, which, apparently, lie in a narrow compass, need mention in brief infra.

The petitioner, after participating in the selection process initiated by the Staff Selection Committee, on the basis of his merit was selected as a Lower Division Clerk (Group-C/ Non-Gazetted/ Non-Ministerial post) in the year 2010. Upon his selection and appointment, the petitioner was, vide order dated 4th of April, 2011, directed to join in the office of Directorate of Census Operations, J&K, Srinagar. Thereafter, the petitioner joined his services in the respondent Department and, till date, he is performing his duties there with great dedication and honesty. In the year 2012, the petitioner, on developing certain health problems, coupled with the factum of his parents being old-aged, approached the respondents with a representation, through proper channel, seeking his transfer from the State of Jammu and Kashmir either to his home town (State of Jharkhand) or to some other State nearer to his home State. Thereafter, the petitioner, from time to time, filed a series of representations before the respondents for the redressal of his grievances, but no action was taken on the said representations by the respondents. During the interregnum, two Lower Division Clerks, namely, Shri Pulkit Nawal Gupta and Shri Vishal Tiwari, being similarly situated with the petitioner herein, were transferred from DCO, Jammu & Kashmir to DCO, UP and DCO, Delhi, respectively, on the same grounds as agitated by the petitioner in his representations. The petitioner, immediately, made yet another representation before the respondents seeking consideration of his claim on the same analogy as has been adopted in the cases of above two similarly situated Lower Division Clerks. Despite issuance of various inter se communications between the respondent authorities as regards the claim of the petitioner, no final decision in respect thereto was taken by the respondents, constraining the petitioner to file a writ petition before this Court, being SWP No. 694/2018. The said writ petition, on consideration by this Court, vide order dated 30th of March, 2018, was dismissed at its threshold. Aggrieved thereby, the petitioner filed a Letters Patent Appeal, being LPA No. 21/2018, before the Division Bench of this Court, wherein, on consideration, the Division Bench, while allowing the appeal, directed the official respondents to consider the representation of the petitioner in light of the recommendations made in favor of the petitioner. Since, the respondents did not consider the judgement dated 30th of March, 2018, as passed by the Division Bench of this Court, the petitioner filed a contempt petition, registered as CPLPA No. 10/2018, before the Division Bench of this Court, seeking implementation of the judgment aforesaid. In the said contempt petition, the respondents filed the Statement of Facts, enclosing therewith the consideration order dated 8th of May, 2018, passed by them, in terms whereof the claim of the petitioner has been rejected. The Division Bench, on noticing the issuance of the consideration order dated 8th of May, 2018, enclosed with the Statement of Facts filed by the respondents, closed the contempt petition, giving liberty to the petitioner to challenge the said order in appropriate proceedings. It is against this order that the petitioner has filed the instant writ petition for the above stated relief(s).

On notice, the respondents have filed their objections, wherein they have resisted and controverted the averments made by the petitioner in his petition. It is stated that the petitioner, after passing the requisite examination conducted by the Staff Selection Commission, was appointed in the respondent department as a Lower Division Clerk (Group C/ Non-Gazetted/ Non-Ministerial post) in the year 2011 and such an employee's cadre for appointment, seniority, promotion, etc., is maintained in the respective Directorates. It is further contended that as per the transfer policy in vogue, as issued by the respondents on 19th of March, 2018, only the posts belonging to the Group B and Group A categories have the All-India-Transfer liability, whereas the ones falling in Group C category, i.e. the category in which the petitioner falls, do not have All-India-Transfer liability and, as such, same are non- transferrable ones. The respondents have proceeded to state that the representation(s) filed by the petitioner was/ were duly considered by the competent authority by passing a speaking order dated 8th of May, 2018. In the end, the respondents have urged that the petition of the petitioner may be dismissed.

Heard the learned counsel for the parties, perused the record and considered the matter.

At the first blush, what requires to be stated is that the action of the respondents, being the functionaries of the State, has to be transparent. The State cannot discriminate between similarly circumstanced persons. Ours is a welfare country which aims at the goal where everyone is/has to be, as far as possible, looked after. The case of the petitioner had to be considered on the same parameters and analogy as was evolved in the cases of the similarly situated persons, namely, Shri Pulkit Nawal Gupta and Shri Vishal Tiwari. These two persons, too, were appointed as Lower Division Clerks in the respondent Department and, while registering their grievances/ hardships while serving the Department in DCO, Jammu & Kashmir, the respondents, on being approached, transferred the said persons from the State of Jammu & Kashmir to DCO, UP and DCO, Delhi, respectively, apparently, on the same grounds as agitated by the petitioner in his series of representations.

It needs must be said that the respondents, in their reply filed in opposition to the writ petition, have, themselves, admitted the averment made by the petitioner in his petition with reference to the adjustment of the aforesaid two similarly situated persons, who, like the present petitioner, were, initially, allocated to the Directorate of Census Operations, J&K, for performing their duties, but, upon representation of the said persons, their allocation was changed by the respondents and they were, subsequently, adjusted in their native States. However, as fate had it for him, when the case of the petitioner, though of a similar nature as that of the above stated two persons, came up for consideration before the respondents, the respondents rejected the claim of the petitioner by stating that the post in question is a non-transferable one, when, as a matter of fact, the petitioner as well as the said two persons were holding one and the same post, i.e. the Lower Division Clerk (Group-C/ Non-Gazetted/ Non-Ministerial post). In the consideration order, which is impugned herein this petition, nothing has been mentioned as regards the said two persons, on whose analogy, the petitioner had based his claim. The respondents have treated the case of the petitioner as a 'sui generis' case and, thus, have invidiously discriminated him.

Justice is not only law and its administration, but is, in most cases, above law and is done to save the individual from whatever he/ she seeks protection. Our country, in particular, aims at the goal of achieving the welfare State where everyone is/ has to be, as far as possible, looked after. There can be no discrimination between two individuals who are equally placed.

In view of the foregoing discussion, the petition of the petitioner is allowed, as a corollary to which, the impugned order dated 8th of May, 2018, issued by the respondents, is quashed. The respondents are directed to transfer the petitioner, on the same analogy as has been adopted in the case of two similarly situated persons, whose mention has been made hereinabove. The respondents are expected to pass orders in the case of the petitioner, as above, expeditiously, preferably within a period of two months' time from today.

Writ petition, alongwith connected IA(s), disposed of as above.