AI Structured Summary
Not yet generated for this judgment
Judgment
In this appeal adinterim order dated 07 101997 of lllrd Additional District Judge, Srinagar on an application in main Civil Suit No. 18 of 1997
on the file of the subordinate Court, is impugned.
Syed Bashir Ahmad, Senior Grade Lecturer in higher Education has been transfe rred from Government Degree College, Bemina to islamia
College, (both Colleges at Srinagar) under the orders of Director Higher Education Dated 05091997 He has challenged, this order of transfer in
the Civil Suit pending before lllrd Additional District Judge at Srinagar on the ground that as senior faculty member of the College at Bemina, he
was discharging duties as Principal/Administrative head of the Bemina College as he was assigned the charge by the then Principal M. A. Khan on
his transfer and posting as Director College of Education although no orders in writing, formal or Informal to evidence this stateofaffairs exist on
record. While acting as defacto Principal the authorities were very keen to adjust and find some way for one Mohammad Abdullah Lone, Lecturer
In higher education, though junior to the plaintiff, to become Principal of the Degree College at Baramulla. The incharge Principal Mrs. Or Ashrafa
Jeelani was transferred to Bemina Degree College with a view to safeguard her interests. Plaintiff and two other senior most Lecturers of the
College were transferred. Though the plaintiff and his colleagues had an inkling about the things to come, they represented against the move. But all
the same the transfer orders were issued and obviously am based on mollified considerations and stand issued in colourable exercise of powers to
accommodate the said Mohammad Abdullah, alleged to be protege of some central Minister and Dr. Ashrafa Jeelani The transfer orders were
issued not in public interest or to serve any public purpose, but with a view to serve and show undue benefit and favourto said two individuals The
transfer order is not issued as an exigency of service or in the interest of administration
On these pleaded grounds in the main suit, a declaration is sought for declaring the transfer orders as void and inoperative and for an injunction
restraining the defendants from giving effect to the orders in question, so far as the order concerns the plaintiff.
On like grounds the motion for interim order was moved. The defendants appeared and filed objections and subsequently also filed the written
statement. The respondents have refuted all allegations of maiafidies and colo urable exercise of power. The transfer is stated to have been ordered
in routine and has not in any way violated the rights, if any, of the plaintiff.
The Additional District Judge upon hearing the parties, on consideration of respective cases of the parties, after going through the record passed
an order, whereby, the operation of transfer Order No. 1220HE dated 591997, so far as it covers the transfer of Syed Bashir Ahmad Plaintiff
from Bemina College to Islamia College in the Department of Pnysics. has been suspended together with the order purporting to be relieving order
of said Syed Bashir Ahmad from the said Bemina College. Thereby, implying that said Bashir Ahmad shall continue in the Bemina College. It has
been however expressly subjected to the condition that the posting of Syed Bashir Ahmad in the Bemina College shall not in any manner have any
effect on the transfer of Dr. Ashrafa Jeelani to Bemina College. The Respondent/State of J&K, its Education Commissioner and Director Colleges,
Higher Education J&K have been given freedom to entrust charge as Principal of the Bemina College to any official qualified to hold the charge
under the norms governing such matters.
The State of Jammu and Kashmir, Com missionercumSecretary to Government, Director College. Higher Education or for that matter the
Education Department has not come up in Appeal against the impugned order Dr, Ashrafa Jeelani has preferred an appeal against the impugned
order, challenging the impugned order on the, ground that she took over as Incharge Principal Government College Bemina on 991997 on transfer
and as Principal she has relieved Syed Bashir Ahmad on 991997 itself. Though she was not arrayed as party to the suit preferred before the lower
court but the trial court on its own impleaded her and Director College Higher Education as party to the suit with a view to cure the defect of
nonjoinder of the necessary parties. The impugned order does not warrant interference by the civil court, as the transfer order has not been made
either by an incompetent authority or on malafide considerations or as preventive course. Relieving of Bashir Ahmad on 991997 from Bemina
College, a day earlier to the filing of the suit is valid and its stay is not proper exercise of jurisdiction. In matters) of transfers) it is for the executive
and competent authority to pass orders in the interests of exigency of administration and the courts have to refrain from substituting their views for
those of the authorities. The discretion of the competent authority cannot be exercised by the courts. The impugned order of 7101997, is sought to
be set aside and appellant allowed to continue to function as Incharge Principal of Degree College Bemina.
I have heard learned counsel for the parties and considered the matter.
As observed, the Government and its CommissionercumSecretary and Director Colleges Higher Education, have not preferred the appeal.
Instead they appear to have settled down to take the impugned order as it stands, without any objection or reservation. However Dr Ashrafa
Jeelani being respondent and affected by the impugned order has challenged the order in appeal. The legality of the impugned order shall have to
be examined only in so far as the order affects her transfer from Baramulla and her posting in Bemina College. This is the limited scope of the
appeal.
In matters of adinterim injunctions, the powers of the appellate court are rather circ umscribed. The appellate court would be loath to interfere
with the exercise of discretion and would not normally be justified in interfering with the exercise of the lower court's discretion under appeal solely
on the ground that if the appellate court had considered the matter at the trial stage it may have come to a contrary conclusion. The exercise of
discretion by the trial court in a reasonable and judicious manner would not justify interference with the exercise of the powers and jurisdiction.
However, where the trial courts exercise its discretion arbitrarily or Ignore the relevant facts, then the appellate court has to interfere. In the field of
discretionary reliefs, the apex court in AIR 1977 SC 747 observed:
... only if the discretion is not exercised by the trial court in the spirit of the statute or fairly or honestly or according to the rules of reason and
justice, the order passed by the lower court can be reversed by the superior court....
The impugned order has taken care of interests of the petitioner in so far as it has been left open to the competent authority/authorities to order
handing over of charge of principalship of the Bemina College to another teacher or official as per the applicable norms by the Government, This is
all the more required to overcome administrative problems for running the college The plaintiff Syed Bashir Ahmad happen s to be the Lecturer in
higher education in Physics, whereas, Dr. Jeelani initially transferred as Selection Grade Lecturer from Baramulla to Bemina College is in the
department of Botany. Obviously, there should be no clash on this count, though she has assumed the charge of Principalship of the College
pursuant to her aforesaid transfer order which is patently wrong. However, her action has been retrospectively ratified by the Government by
issuing a subsequent order for the purpose. The Director Colleges, Higher Education has even ordered, that she will be drawing her salary against
the post of Principal Not only so to be fair to Dr Ashrafa Jeelani it merits to be taken note of that in Service Writ Petition No. 1364/95, a Single
Bench of this Court while disposing of her writ petition on 1651986 issued a,direction to the State and the competent authority of the Education
Department that she shall be allowed to retain her status and position as incharge Principal, Government College Baramuila till the post of Principal
Government College Baramuila is filled on substantive basis, which I believe has not been done till date. Either she could not have been transferred
from Baramuila, as in that case her transfer as Senior Lecturer, may be in Botany department, would dimity go against the directions of the said
Court order, or in case the State Govt. still thought it prudent to transfer her she could be transferred and given the status and position as Incharge
Principal on a post to which she is transferred equal to the post she held at Baramuila. At this stage in this case Court is not concerned with any
further directions) in that writ, and these, direction(s) fall outside the scope of the limited question raised in this appeal.
Seen thus, keeping her incharge of Bemina College cannot be said to be maiafide or colourable exercise of powers apart from this question
that the competent authority has the powers to order the arrangement of incharge Principal as per the applicable norms though the action of the
State has to be fair, reasonable and above reproach.
So for as the question of maintainability of the suit under section 56 of the Specific Relief Act is concerned, same is required to be determined
on inquiry. In fact all the issues including the question of maiafidies and colourable exercise of powers shall have to be raised and determined on
evidence. These questions shall have to await the decision on trial at the appropriate stage of the proceedings,
For the aforesaid reasons, the appeal is dismissed with the modification that the appellant shall continue to be the incharge Principal subject to
her eligibility, so long as the competent authority continues the arrangement or the post of Principal Govt. College Bemina is not filled up on
substantive basis whichever is earlier. It needs to be observed that the Government servant holding a transferable post has no vested right to
remain posted at one place or at the other. He is liable to be transferred from place to place, after all orders issued by the competent authorities to
that effect do not violate any legal right of an employee. If the effected employee has some grievance instead of running to the court, the party
should approach the higher authorities in the department for redressal of his grievances The State and the Competent authority of Education
Department not having preferred any appeal against the impugned order, are bound by the adinterim order and directions issued thereto by the trial
Court.