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Judgment
By the medium of present petition, petitioner seeks the following relief:-
i) Certiorari quashing the communication No. DGAT/E-11/PF1988/1 dated 18.01.2017 whereby the request of transfer of the petitioner has been
rejected without consideration by illegal application of Rule 4(4) of the J&K Kashmiri Migrants (Special Drive) Recruitment Rules 2009.
ii) Mandamus commanding the respondents not to treat the petitioner as an appointee holding a post created under the J&K Kashmiri Migrants
(Special Drive) Recruitment Rules 2009 as a part of Prime Minister’s Special Package for Return and Rehabilitation of Kashmiri Migrants to
Kashmir Valley in view of her promotion against the post of Accountant as a member of Kashmir Subordinate Accounts Service Class-II
(Accountants) and in view of the clarification given by the respondent No.2 vide communication No.Rev/Mr/11/2014 dated 06.02.2015; and
iii) Mandamus commanding the respondents to consider the request of the petitioner for transfer from District Kupwara to either to move office or to
any other place in Jammu division on its merits without applying the provisions of J&K Kashmiri Migrants (Special Drive) Recruitment Rules 2009
with a further direction to the respondents to transfer the petitioner to move office or to any other place in Jammu Division.
The facts, as detailed in the petition are briefly stated that the petitioner came to be selected and appointed as Accounts Assistant under Prime
Minister’s Special Package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Valley (SRO 412 of 2009 dated 30th of December,
2009) in the respondent-department vide Government Order No.282-F of 2010 dated 24th of November, 2010 in pursuance of recommendations made
by J&K Services Selection Board. Subsequently, she along with others came to be deputed to undergo one year ACC training at Accountancy
Training Institute, Srinagar and after completion of said training, she was posted as Accounts Assistant in District Treasury, Kupwara where she had
performed her duties to complete satisfaction of superior authorities. It is contended that the petitioner is the only female employee in District Treasury
Kupwara and did not feel secure in the Kashmir Valley due to the tensions/turmoil erupted from the last few years. It is contended that
petitioner’s appointment is governed by J&K Kashmiri Migrants (Special Drive) Recruitment Rules, 2009 (for brevity ‘the Rules’). In the
aforesaid Rules, posts specially created from time to time in the Valley under the Prime Minister’s Special Package for Return and Rehabilitation
of Kashmiri Migrants to Kashmir Valley, are to be filled up in terms of Rule 2(e). The aforesaid Rules further envisages in Rule 4(4) that an appointee
to a post created under the Rules shall have to execute an agreement with the government on a prescribed form that he/she will serve in the Valley
against the post on which she/he is appointed and at a place where she/he will be posted. The Rules also provides that in case the appointee migrates
from the Valley again for any reason whatsoever, he/she lose the job without any notice and shall stand terminated. As per Rule 6(6), an appointee
under the said Rules shall have to work within Kashmir Valley and shall not be eligible for transfer outside the Valley under any circumstances. It is
contended that the petitioner continued to hold the post of Accounts Assistant specially created under the aforesaid Scheme till the year 2015 when
vide Order No.79-Acctts of 2015 dated 25th of February, 2015 issued by respondent No.3-Director General, Accounts and Treasuries, J&K,
Srinagar/Jammu, she came to be placed as Incharge Accountant in her own pay and grade with charge allowance admissible under the Rules-
Subordinate Accounts Service Class-II (Accountants) by corresponding abolition/reduction of two supernumerary posts of Accounts Assistant. It is
contended that petitioner has been subsequently regularized against the post of Accountant as a member of Kashmir Subordinate Accounts Service,
Class-II (Accountants) vide order No.70Acctts of 2016 dated 4th of March, 2016. It is contended that the petitioner now performing her duties against
the post of Accountant borne on regular State Budget and had been requesting the respondents to either transfer her move office or to any place in
Jammu and on that count, she submitted a representation before the respondent in January, 2017 but the request of the petitioner has been rejected by
respondent No.3 in terms of his communication No.DGAT/E-11/PF-1988/1 dated 18.01.2017 on the ground that same does not merit any
consideration in terms of Rule 4(4) of ‘the Rules’.
On notice, response has been filed by the respondent No.3 and 4 resisting therein the claim of the petitioner. The main contention of the
respondents is that as for as promotion to next post or abolishment of supernumerary post held by the petitioner on which she has been appointed or
drawing the salary from State Budget will not be a valid ground for seeking transfer outside the Valley as she is appointed under Prime Minister
Special Package for the return and rehabilitation of Kashmiri Migrants to Kashmir Valley Scheme and as such governed by J&K Kashmiri Migrants
(Special Drive) Recruitment Rules, 2009. It is their main contention that petitioner is not entitled to be transferred outside the Valley as the basic
object the Scheme shall be defeated in doing so.
It is admitted case of the parties that petitioner is appointed and selected under J&K Kashmiri Migrants (Special Drive) Recruitment Rules, 2009
against a post created specially under Prime Minister’s Special Package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Valley
and promoted as Incharge Accountant in her own pay and grade with charge allowance as admissible under the Rules-Subordinate Accounts Service
Class-II (Accountants)Â and, thereafter, regularized against the post of Accountant as a member of Kashmir Subordinate Accounts Service Class-II
(Accountants).
On perusal of Rule 4(4) of SRO 412 of 2009 dated 30th of December, 2009, it reveals that the appointee shall have to execute an agreement with
the Government on the ‘format’ annexed with aforesaid SRO deposing therein that he/she will serve in the Valley against the post on which he
is appointed and at a place where he will be posted and in case the appointee migrates from Valley again for any reason whatsoever, he/she shall
loose the job without any notice and shall stand terminated. Further the Rule 6 envisages that the appointee shall have to work within Kashmir Valley
and shall not be eligible for transfer outside the Valley under any circumstances, meaning thereby, as per the mandate of Scheme, the appointee is not
entitled to seek transfer outside the Valley.Â
Perusal of Annexure-F reveals that in reply to query made vide letter No.DGAT/E-III/194/G-18 dated 27.10.2014 by respondent No.3Director
General, Accounts and Treasuries, J&K, the Under Secretary to Government, Revenue Department vide communication No. Rev/MR/11/2014 dated
06.02.2015 has clarified that the supernumerary posts shall get abolished once the appointee is promoted and adjusted against any post borne on
regular budget and his status shall not remain the same. It is further clarified in the aforesaid communication that on promotion to the next higher post,
his salary shall be drawn from the normal budget on which the post is borne and not from SRE and there shall be no binding on the department for
posting of the promotee official outside of home district once he is promoted.Â
The clarification given to the petitioner’s department by Under Secretary to Government, Revenue Department vide aforesaid communication
makes it crystal clear that the conditions, as contained in Rule 4(4) and Rule 6 of the SRO No.412 dated 30.12.2009, shall not apply to the case of the
petitioner. It is also admitted by the answering respondents No.3&4 that petitioner’s salary is being drawn from the regular State Budget.Â
Pleadings of the petitioner indicate that despite she being the only female employee and facing a lot of inconvenience in attending her duties in
District Treasury, Kupwara, even then she is discharging her duties to the entire satisfaction of her superiors, more particularly, when the law and
order situation is very worst in the district Kupwara.
In the facts and given circumstances of the case, this petition is, disposed of, by directing the respondents to re-consider the claim of the petitioner
for transfer, as projected in the petition and also on the ground that the post got abolished/reduced which was specially created under Prime
Minister’s Special Package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Valley Scheme, and against which she was appointed
initially. While passing the consideration order, respondents shall pay due regard to the communication No.Rev/MR/11/2014 dated 06.02.2015
(Annexure-F). Let consideration order be passed within a period of four weeks from the date a certified copy of this order along with complete set of
writ petition is made available to the respondents.Â
The petition is disposed of along with connected IA. Â