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Judgment
The background facts, in a nutshell, are that by an order dated 23.07.2018 of this Court, SWP No. 1443/2018 bearing the title Mohan Singh
Versus State of J&K & Ors was heard and reserved for judgment. On 03.07.2018 when the aforesaid petition was listed before the Court, an order to
the following effect came to be passed in it :Â
“Notice in the main petition as well as in MP returnable within a period of two weeks.
List on 19-07-2018.
By cabinet decision No. 118/09/2015 dated 21-08-2015, the petitioner was transferred and posted as Mission Director Health Mission. By a
subsequent order bearing no. 207-HME of 2018 dated 2303-2018, the petitioner was directed to report to the administrative department for further
posting and Dr. Yashpal Sharma, Registrar (Academics), Government Medical College Jammu was transferred and post as Mission Director,
National Health Mission J&K vice Dr. Mohan Singh. Â
The grievance of the petitioner is that since he was working as Project Director, J&K Stage AIDS Control Society and was transferred and post as
Mission Director, National Health Mission, J&K by virtue of a cabinet decision in the interest of administration and the applicable law and rulesÂ
governing the field, the government order bearing No. 207-HME of 2018 dated 23-03-2018 has been issued by an incompetent authority. There
appears to be substance in the contention of the petitioner. therefore, it is directed that subject to objection and till next date of listing before the Bench
the operation of the impugned order No.Â
207-HME of 2018 dated 23-03-2018 shall stay.â€
02/ Respondent No.3 assailed this order dated 03-07-2018Â in LPA(sw)Â No. 91/2018 before a Division Bench of this Court and the LPASWÂ
came to be determined and decided on 06.07.2018 in the following manner :
“……… From the perusal of the order dated 03-07-2018, it is evident that the order is an ex-parte order and has been passed subject to objections
and has been directed to be listed on 19-07-2018.
Therefore, in view of the peculiar facts of the case, we are not inclined to interfere with the aforesaid order. However, we deem it appropriate to
dispose of this appeal with an observation that in case the appellant files an application seeking vacation of the order dated 03-072018, the learned
Single Judge is requested to decide the same after hearing the learned counsel for the parties within a period of two weeks from today by a speaking
order.
Accordingly, the appeal along with MPs is disposed of.â€Â
03/ In furtherance of the order aforesaid passed in the LPA(sw), the parties completed their pleadings and accordingly the matter was heard and
reserved for judgment as stated herein before.
04/ The sum and substance of the petition of the petitioner is that he was transferred and posted as Mission Director, National Health Mission, J&K
by a decision of the Cabinet. His case precisely is that it was the cabinet that had to take a decision in the matter of his transfer and the order by
which he was transferred from the post of Mission Director was not passed by the Cabinet but by an incompetent authority. Â
05/ In a subsequent development, vide  order No. 443-HME of 2018 dated 31.07.2018, the Government directed that the Government Order
No. 207-HME of 2018 dated 23.03.2018 issued under endorsement No. HD/NHM/24/2018 dated 23.03.2018 is herby kept in abeyance till further
orders.
06/ Aggrieved by this order of the Government, the respondent No.3 in the earlier petition i.e. Yashpal Sharma challenged the same before this Court
in SWP No.1769/18 on the grounds inter-alia that he has been posted as Mission Director, National Health Mission, J&K Government  vide
Government order No. 207-HME of 2018 dated 23.03.2018. Consequently, in pursuance of the said order, he took over the charge from the private
respondent No.2, that is the petitioner in the earlier petition. After an approximate period of four months from the date the petitioner assumed the
charge of Mission Director, the respondent No.2, challenged the transfer order, which was stayed at the motion hearing stage vide order dated
03.07.2018, passed in SWP No. 1443/2018 on the suppressed information about the assumption of charge by the petitioner and in absence of the
explanation regarding the belated institution of the writ petition. It is further pleaded that upon remand from the  Division Bench the case was
listed in terms of the directions of the  Division Bench which has been heard finally on 23.07.2018 and reserved for judgment/orders. The
respondent No.1 during the interregnum passed the impugned Government order No. 443-HME of 2018 dated 31.07.2018 on the basis of the ad
interim direction dated 03.07.2018 which was not extended by any express subsequent orders as gets revealed from the minutes of the proceedings.
In terms of the order impugned the order of transfer whereby the petitioner has been posted as Mission Director, which order has already been
carried into effect upon relieving of respondent No.2 is sought to be kept in abeyance till further orders. The impugned order further signifies
respondent No.2 to be the Mission Director whereas the petitioner as Registrar Academics, which contemplates the exchange of posting devised
under the impugned order rather than keeping it in abeyance. The order impugned has been formulated to divest the petitioner of the charge and on
the contrary confer the same to respondent No.2. The impugned action constitutes interference in the administration of justice and is, accordingly,
liable to be set aside to proliferate the administrative vice while sabotaging the judicial process. The petitioner continues to hold the charge as
Mission Director, National Health Mission, J&K and in case the relief as sought is declined at this stage, the petition is likely to become
infructuous.Â
07/Â Heard and considered.
08/ The Government of Jammu & Kashmir General Administration Department Civil Secretariat Srinagar issued a Circular bearing No. 30
â€"GAD of 2018 dated 20.07.2018 which has a direct bearing on the matter in controversy and it is reproduced below verbatim et literatim: Â
“1/It has been brought to the notice of the Government that certain Departments/HODs have in the recent past issued orders at their own level
without approval of the Cabinet or concurrence of the Finance Department wherever it was required. There is a need to examine such erroneous
orders for their regularization. 2/All the Administrative Secretaries are accordingly requested to bring to the notice of the General Administration
Department by Monday i.e. July 23, 2018 (11.00 AM) such orders which need to be regularized.
3/If, later on, it emanates that details of any order issued erroneously have not been brought to the notice of General Administration Department, the
concerned Administrative Secretary will be personally responsible for such action.â€Â
09/ The circular cited above, is, in effect, a policy decision evolved by the Government whereby all the Administrative Secretaries have been
requested to bring to the notice of the General Administrative Department on or before a particular date, i.e. July 23rd, 2018, such orders which need
to be regularized for having been passed by certain departments/heads of the departments in the recent past, at their own level without the approval of
the cabinet or the concurrence of the Finance Department, wherever it was required. The object of the circular appears to be that the Government
has felt the need to review the erroneous orders, passed before its promulgation by the authorities that had no competence and jurisdiction to pass
them. The petitions of the petitioners squarely fall within the scales and parameters of the circular issued by the Government, which is cited
above for the convenience of the ready reference. The Government on the face of the circular aforesaid has the power and authority to examine
the validity of the orders, which are the subject matter of challenge in both these petitions. The circular cited above brings it to the fruition that
the Government has the dexterity and competence to find out which of the two orders shall hold the roost or who is the person competent to man
the post even in isolation of the petitioners in the two petitions..Â
10/ Accordingly, both the petitions are disposed of as above along with the connected IAs with the observation made above.Â