Ashraf Mattoo vs State of JandK and Others

Muzaffar Hussain Attar, J.â€"The petitioner is substantively holding the post of Forester and has been placed as Incharge Range Officer in the

respondent Department. In terms of order No. 123 of 2013 dated 21.05.2013 he was transferred which order was challenged in SWP No.

883/2013. The Court on 23.05.2013 stayed the impugned order till next date before the Bench. The respondent No. 2, thereafter, issued Order

No. 327 of 2013 dated 23.10.2013 wherein it is provided that the petitioner shall continue to work as I/c Range Officer, Timber Range (U.F.

Division, Srinagar). The petitioner was continued as Incharge Range Officer, Timber Range (U.F. Division, Srinagar). In view of the aforesaid

order of respondent No. 2, the first writ petition of the petitioner was rendered infructuous. The respondent No. 2 issued Forest Order No. 49 of

2014 dated 10.02.2014 whereunder the petitioner, Incharge Range Officer, was transferred from Timber Range Urban Forest Division Srinagar

and posted as Incharge, Range Officer, Agrostology Range, Srinagar vice Shri Tariq Ahmad Beigh, I/c Range Officer, impleaded respondent No.

6.

The petitioner challenged the aforesaid transfer order in SWP No. 208/2014. The Court on 11.02.2014 disposed of the writ petition by

directing the respondents to have fresh look at the impugned transfer order in light of the averments made in the writ petition and annexures

appended thereto. The respondents were directed to take decision within two weeks from the date copy of the order was served on them. It was

also provided that till then the order impugned shall not be acted upon. The petitioner filed Contempt petition No. 64/2014 in which notice was

issued on 19-2-2014 and respondents were directed to report compliance of the writ court order.

The respondent No. 2 has issued Forest Order No. 84 of 2014, dated 04.03.2014 in which it is provided that the petitioner, Incharge Range

Officer, Timber Range (U.F. Division who was transferred in terms of order dated 10.02.2014 shall now report to Conservator of Forests,

Srinagar. The said authority was directed to utilize his services as Technical Officer till further orders. A post of Range Officer was also allotted to

the Circle for drawal of his salary. It is also provided in the said order that the petitioner shall be referred to SKIMS, Soura, for detailed

investigation and follow up and expenditure be borne the department as per Medical Rules. It is this order which has been called in question in this

petition.

The respondents have filed reply affidavit.

Mr. Qayoom, learned counsel for the petitioner submitted that the order impugned in this petition is illegal, inter alia, on the ground that

respondent No. 2 for malafide reasons has transferred the petitioner to the Office of Circle Division, as the petitioner had challenged earlier transfer

orders before this Court in two writ petitions; the petitioner has been transferred to a non-existent post which is not permissible by Rule 27 of

Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, (for short the Rules of 1956), The learned counsel also in

this behalf referred to the Jammu and Kashmir Forest (Subordinate) Service Recruitment Rules, 1991 (for short 'the Rules of 1991) and submitted

that the post of Technical Officer is not borne on the cadre of service. The learned counsel in support of its contention besides referring to the

aforesaid Rules placed reliance on the judgment of Hon'ble the Supreme Court reported in Vice-Chancellor, L.N. Mithila University Vs.

Dayanand Jha, and submitted that it is not only the payment of salary but the status of the petitioner which has to be maintained, and which in the

present case is not maintained as it has been provide in the impugned order that his services shall be utilized as Technical Officer, when as a matter

of fact, he is functioning as Incharge Range Officer. The learned counsel, accordingly, prayed that the writ petition be allowed and the impugned

order be set aside.

Learned counsel for respondent No. 6 submitted that the petitioner, after having mature stay of more than two years was transferred from

Timber Range Urban Forest Division Srinagar. The learned counsel also invited attention of the Court to a certificate which is annexed as annexure

R-5 with the reply affidavit to indicate that the petitioner as also the private respondent on 11.3.2014 have handed over and taken over the charge

of the office of Timber Range. Learned counsel submitted that in pursuance of handing over and taking over of the charge, the petitioner stands

relieved from the office of Incharge Range Officer, Timber Range, Urban Forest Division, Srinagar and respondent No. 6 has taken over the

charge of the aforesaid post. The learned counsel further submitted that in case direction is issued for adjustment of the petitioner on the post of

Range Officer he would have no objection.

Learned counsel also referred to two judgments of this Court reported in Krishan Kumar v. State and others, 2005 (supp) JKJ 655 [HC] and

Dharam Chand Vs. State and Others, and prayed for dismissal of the writ petition.

In reply Mr. Qayoom, referred to communications to show that after issuance of the Court order dated 11.3.2014 whereunder the transfer

order was stayed, the petitioner was allowed to continue as Incharge Range Officer. Copies of the said communications are taken on record.

The contention of learned counsel for the petitioner that the impugned order has been passed for mala fide reasons cannot be accepted for the

reason that the petitioner who has exercised his legal right to challenge the impugned orders, has not entered into the mind of respondent No. 2 for

passing the impugned transfer order. Perusal of the impugned transfer order would show that in view of the health condition of the petitioner for

which he had produced medical documents/prescriptions before the authorities the order of transfer was passed. This is further fortified by para 2

of the impugned transfer order wherein it has been provided that the petitioner shall be referred to SKIMS, Soura, Srinagar for detailed

investigation and expenditure shall be borne by the department as per the Medical Rules, It is not in dispute that the petitioner had mature stay and

thereafter he was ordered to be transferred.

Another contention of learned counsel for the petitioner that the petitioner has been transferred to a non-existent post which is not borne on the

cadre of the service, in the facts of this case, cannot be accepted inasmuch as the post of Range Officer has been allocated to the circle, for

accommodating the petitioner.

The post of Technical Officer may not be borne on the cadre of service but since the post of Range Officer has been allotted to the Circle, so,

in essence, the petitioner would be holding the post of Range Officer, thus, not affecting his status or service rights. The petitioner in the facts of this

case has not been transferred outside his cadre.

The petitioner is substantively holding the post of Forester. He has been only placed as Incharge Range Officer, which, in law, does not

constitute promotion. By transferring him to the office of Conservator of Forests, the status of the petitioner has not been changed.

However, in this case the post of Range Officer has been allocated to the Office of Conservator of Forests for being utilized for the benefit of the

petitioner.

The communication produced at the time of hearing of the case about continuation of the petitioner after passing of the stay order would show

that the Divisional Forest Officer, Urban Forest Division, Srinagar, vide his communication dated 14.3.2014 referred the matter to Conservator of

Forests, Circle Srinagar and a request was made to the competent authority for passing of the orders in light of the orders passed by the Court.

Nothing is produced on record to show as to whether any order was passed by the competent authority. This assumes significance because the

petitioner handed over the charge of the Office of Incharge Range Officer, Urban Forest Division, Srinagar on 11.3.2014.

The another document/communication dated 14.3.2014 produced by the learned counsel for the petitioner, is a communication addressed by

the petitioner to Conservator of Forests, Srinagar Circle, Srinagar in which he has informed the said authority that he has assumed the office of

Incharge Range Officer, Timber Range.

Learned counsel for the petitioner also produced copy of the order dated 28,3.2014 passed by Divisional Forest Officer, Urban Forestry

Division, Srinagar to indicate that the petitioner is working as Incharge Range Officer, Timber.

In absence of the order from the competent authority to allow the petitioner to assume the charge after handing over the charge on 11.3.2014

his assumption of the charge of the post is rendered inconsequential.

Since the petitioner has been working in view of the Communication dated 14.3.2014, so there will be no break in his service.

The impugned transfer order, for the abovestated reasons, does not infringe any rights of the petitioner. The writ petition is dismissed. Interim

order dated 11.3.2014 is vacated forthwith.