Ghulam Rasool Malik vs State of J & K

Nisar Ahmad Kakru, J.—At the very out set, it needs to be noticed that this petition had come up for consideration on 15.03.2001,

27/03/2001, 29/03/2001 but had to be adjourned due to non appearance of the counsel for the petitioner who had abstained from the work

because of the strike of the Bar as contended by the petitioner. On 04/A4/2001 it was again adjourned in hope of appearance of the counsel for

the petitioner. The petition was listed on 23/04/2001 and the following orders was passed:

The petitioner, and learned counsel for the State were heard on 04.04.2001. However, it was adjourned to this day in hope of appearance of

learned counsel for the petitioner. Counsel is not present. Mr. MH Attar submits that the petitioner has obtained an interim direction by

suppression of material facts. He, therefore, prays for vocation of the direction. One Dr. Gh. Nabi War has been posted in place of the petitioner

as S.D.O. He submits that the interim direction has the effect of staying his order of posting also. He, therefore prays for modification of the order

to enable him to join at Handwara in consequence to Govt. order No. 91ASH of 2000 dated 15.09.2000. Considering the nature of the

controversy I am of the opinion that it will be in the interests of justice to decide the main petition. Till then the interim direction has to remain in

force. Writ petition is admitted to hearing. Mr. MH Attar adopts the reply already filed by him to the admissibility of the writ petition as counter.

The petitioner has produced photostat copies of three documents which are also taken on record to be read as rejoinder. The petition to come up

on 25.04.2001 for final arguments. The petitioner is directed to cause the appearance of his counsel for arguments.

The petitioner's counsel did not enter appearance. Be it placed on record that the petitioner had sought further adjournment, for his advocate

had expressed inability to appear because of strike of the Bar. The prayer was opposed by LC for the respondents as also by the affected party. It

is appropriate to notice that an ad interim direction, passed in favour of the petitioner, has undoubtedly the effect of stalling the implementation of

the order of posting made by the govt. in favour of Dr. Ghulam Nabi War. The said Dr. (hereinafter applicant for brevity) sought vacation of the ad

interim direction through CMP 2370/2000. It needs to be noticed that by order dated 23.04.2001, the ad interim direction is enforceable till

disposal of the writ petition. This being the position, the prayer for adjournment, if allowed would automatically protect the life of the ad interim

direction. That apart law is settled that non appearance of the counsel cannot come in the way of the court and the court is within its powers to

proceed ahead notwithstanding such non appearance. No doubt, for justifiable reasons, adjournments may be granted, but question arises whether

the court is obliged to adjourn a case because of the strike call given by the Bar. To answer the question it is advantageous to refer to the judicial

pronouncement handed down by the Apex Court in Raman Services Pvt. Ltd. vs. Subash Kapoor (AIR 2000 SC 207 para 28):

the courts were sympathizing with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. Some courts

might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the

list in the absence of the counsel but majority of the courts in the country have been impliedly sympathizers by not rising to the occasion by taking

positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution

of judiciary, it is not too late even now for the courts in the country to rise from the slumber and perform their duties without fear or favour

particularly after the judgement of Court in AIR 1998 SOW 3806. Inaction will surely contribute to the erosion of ethics and values in the legal

profession. The defaulting courts may also be contributory to the contempt of this court"".

Applying the judgement supra there remains no scope of accommodate the striking lawyers by granting adjournments and being alive to the

mandate of the judgement of this court had no option but to decline further adjournment to the petitioner and the petition was taken up for final

hearing.

Petitioner was heard. LC for the respondents was also heard. Applicant too. This writ petition calls in question an order of transfer. The facts

material for disposal of this writ petition may be briefly stated. The applicant (Dr. Gh. Nabi War) was transferred and posted as Sheep

Development Officer Leh, but order could not be given effect because he was declared physically unfit by the Standing Medical Board, Govt.

SMHS Hospital, Srinagar vide communication No. MEd BD / 2004 dated 9.06.2000.The communication forms annexure B to the reply filed by

the State. Consequently, the applicant came to be posted as Sheep Development officer, Handwara by Govt. Order No. 91ASH of 2000 dated

15.09.2000. The order forms annexure E to the CMP 2370/2000 filed by the applicant. It is seen from the record that the writ petition was filed

by the petitioner herein on 18.09.2000 but he did not challenge the order of posting of the applicant although, it was issued on 15.09.2000

apparently prior to institution of the writ petition. So much so, the petitioner did not implead the applicant as party to the writ petition. It also

transpires from the record that the applicant had assumed the assignment on 19.09.2000 as is evident from annexure F to the CMP

No.2370/2000, consequent upon which the respondent 4 had asked the Treasury Officer Kupwara, to honour the signatures of the applicant on

the bills. Exfacie all the aforementioned events had occurred prior to 21.9.2000 which is the date when the matter had come up for consideration

for the first time before the court yet these events were not brought to the notice of the court. In this backdrop, I have no hesitation to say that it is

the suppression of facts which has prompted the court to pass ad interim direction in favour of the petitioner who has maintained his position at a

place of his choice on the strength of the said direction.

The order is impugned mainly on the allegation of favouritism. To substantiate the contention it is averred that the impugned order was passed to

pave way for the adjustment of the applicant in the valley. The contention is controverted by the respondents. It is submitted that the applicant's

transfer to Ladakh had to be cancelled because of his physical unfitness declared so by the standing Medical Board Government SMHS Hospital,

Srinagar. In consequence thereto he came to be posted in place of the petitioner in the interest of administration. Suffice it to say that such course

of action is not beyond the competence of the government. True, it is that in the process the petitioner was also affected but no ill will can be

attributed to the government in the facts and circumstances of this case. Obviously, the challenge is unfounded.

It was next contended that as per policy evolved by the Govt. for transfer of its employees to Ladakh, only a junior most government servant

can be transferred to Ladakh, which would mean that when a junior is not available the post shall to remain vacant. A policy of this type is bound

to lead to an anomaly. Same being not endowed with reason is not justiciable, therefore breach of such policy cannot give a cause to invoke the

extra ordinary writ jurisdiction of this court under Article 226 of the Constitution.

It was further contended by the petitioner that he too has been declared unfit to serve at Ladakh. To justify the contention, he has produced a

xerox copy of a certificate dated 14.11.2000 issued by the Medical Board. This aspect of the case calls for consideration in the light of the fact

that admittedly the applicant Dr. Ghulam Nabi War was transferred to Ladakh. His transfer was cancelled because of his physical unfitness. A

communication forming annexure to the reply of the state reveals that there are two more doctothers whose transfer was also sought to be

cancelled on the basis of medical unfitness recorded by the Standing Medical Board of Govt. SMHS Hospital, Srinagar. It emerges from the

aforementioned factual matrix that the State has evolved a principle not to force a government servant to serve at Ladakh if he is medically unfit to

serve there. The policy cannot be said to be irrational but is quite reasonable one because altitude sickness may at times prove fatal to the life of a

government servant. Pressing into service the said principal the petitioner claims to be similarly situated with the applicant and other doctothers of

the department whose transfer has been cancelled. If it is a fact that petitioner is similarly situated with the applicant namely Dr. Ghulam Nabi War

in all material respects, in such eventuality, the respondents cannot depart from the aforementioned principle of policy without justification and this

aspect is required to be looked into by the competent authority. In this view of the matter it would be in the interests of justice to direct the

respondents to consider the dispose of the petitioner's representation for cancellation of his transfer to Ladakh within four weeks on the basis of

the opinion of Medical Board already communicated provided the communication is not a fake one and till the disposal of representation the

petitioner be allowed to work in the valley against any available post. It shall be obligatory upon the .petitioner to extend all possible assistance and

cooperation to the concerned authority during the process of consideration. If he fails to, the respondents shall be free to implement the impugned

order of transfer.

Now a word about the relief prayed for by the petitioner seeking indulgence of the court for his continuation at Handwara. This contention is

advanced simply to be rejected for the reason that a government servant has no vested right to continue at a place of his choice. Even if, it is

assumed on a hypothesis that the medical ground pleaded by the petitioner is well founded and his transferred to Ladakh is cancelled by the

government yet he cannot claim his continuation at present place of his posting but it is for the Competent Authority to post him at a place of

exigencies of administration may demand. Needless to mention that the Competent Authority is supposed to exercise the power of transfer

bonafidely, reasonably and in the interest of public purpose which includes interest of administration as well.

In the aforementioned backdrop this writ petition is disposed of alongwith the CMPs. Ad interim direction dated 21.09.2000 is vacated. As a

corollary Dr. Ghulam Nabi War is free to resume his duties on the strength of govt. Order No. 91 .ASH of 2000 dated 15.09.2000. Srinagar.

24/5/2001