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Judgment
Bhawani Singh, Chef Justice
Admitted. Heard finally.
This Letter Patent Appeal is directed against order of Single Judge dated 30051997 staying the operation of Government Order No. 470HME
of 1997 dated 30041997 to the extent it appoints the petitioner as Officer on Special Duty (OSD) in the Health and Medical Education
Department. During the course of hearing of this matter, Shri S.T.Hussain, learned Senior Counsel, contended that this Appeal is not maintainable
as the impugned order is interlocutory in nature and that the petitioner has been transferred out of his cadre, which is not logically permissible and
that the petitioner may be allowed to function in Medical College, Srinagar against the post he was holding before the impugned order was passed.
On the first submission, reference was made to Asrumati Debi Versus Kumar Rupendra Deb Raikot and other (AIR 1953 Supreme Court
198). Careful reading of this judgment shows that if the order affects the merits of the controversy between the parties in the case at any stage of
the proceedings, it amounts to Judgement within the meaning of Letters Patent Law and Appeal can be competently filed against the same.
This position has been made amply clear by the Apex Court in later decision reported in AIR 1981 Supreme Court 1986; (Shah Babulal Khimji
Versus Jayaben D. Kania and another) in which Asrumati Debi's case (supra) has been considered. It has been held in this judgment that whenever
a trial judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a Judgment within the meaning of
Letters Patent. However, all interlocutory orders may not be regarded a Judgement, but those which decide matters of moment or affect vital and
valuable rights of the parties and which work serious injustice to the party concerned, would be Judgements under Letters Patent.
It is also held that this question has to be considered in the context of Order 43 Rule 12 Code of Civil Procedures since there is no
inconsistency between the two provisions. There is Full Bench decision of this Court reported in SLJ 1982 J&K; (M/s Astral Trade Versus M/s
Haji Mohammad Shaban Dar & Ors.) holding that the departure from the normal Rule that interlocutory orders are not appealable can be made
when order is manifestly wrong or erroneous.
In the present case, learned Single Judge has virtually granted the principal relief sought in the petition without hearing the other side thereby
going against the law laid down by the Apex Court in Bank of Maharashtra Versus Race Shipping & Transport Co. Pvt. Ltd. and Another; (1995)
3 Supreme Court Cases 257, Assistant Collector of Central Excise Chandan Nagar, West Bengal Versus Dunlop India Ltd. and others; (1985) 1
Supreme Court Cases 260. State of Rajasthan and others Versus M/s Swaika Properties and Another; (1985) 3 Supreme Court Cases 217.
Therefore this order is liable to be set aside.
Going to the merits of the case argued by the learned counsel for the parties, expediency of transfer cannot be inquired into by the Court unless
it is malafide or against Rules (See: (1995) 3 SCC 272; State of M.P. Versus SSKOURAVAND and others). Petitioner does not contend that
order in question is actuated by malafides. Submission is that it is against the Jammu and Kashmir Medical Education (Gazetted) Service
Recruitment Rules 1979, which do not envisage transfer of member of service outside the cadre. Similarly, Rule 27 of the Jammu and Kashmir
Civil Services (Classification, Control and Appeal) Rules, 1956 provides for service in the cadre post.
It was contended by the learned counsel for the Appellant that order dated 3041997 (Annexure P9) is not order of transfer. It is order of
posting/adjustment of the petitioner as OSD in the Health and Medical Education Department. There is vast difference between the two terms as
decided by the Apex Court in AIR 1967 Supreme Court 903; The State of Assam Versus Ranga Muhammad and others. Therefore, 'posting'
cannot be understood in the sense of transfer when the idea of appointment and promotion is involved in the combination.
We have examined the rival submissions of the learned counsel for the parties. In our considered opinion, Service Rules pressed into service by
the petitioner do not help him. They do not prohibit the Appellant from passing order in exercise of executive power of the State under Article 162
of the Constitution of India. It is well settled that these Rules are silent, the deficiency can be made good by executive instructions and executive
orders.
Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 is a general Rule for Civil Services. The
Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 are applicable in the present case, according to the
petitioner.
Even if this is so, under SubRule 2 of Rule 15 thereof, the Government may, in the exigencies of public service, temporarily post any member of the
service to perform such duties as may assign to him outside his service. The kind of posting does not affect his membership of service under these
Rules.
The petitioner has been promoted to the higher grade like the two others. Other two have been posted principles of the two Medical Colleges
in the State, while the petitioner has been posted Officer on Special Duty in the Health and Medical Education Department. He has no objection
against promotion to the higher grade, he should have no objections against posting as Officer on Special Duty in the Secretarial in the exigency of
service for reasons stated by the Appellant in the Memorandum of Appeal. It has been held by this Court in SWP No. 556/1997; Prof. Raj
Kumar Chhibber Versus State of J&K and others, decided on April 9, 1997 that there is no necessity to create a post of OSD specifically.
Appointment of a person by the Appointing authority as such is enough. In this case, the decision has been taken by the Cabinet. Obviously,
posting of petitioner as Officer on Special Duty in the Health and Medical Education Department was considered in the interest of administration in
the field, court should not ordinarily interfere unless clear case of malafides or infraction of law is made out. Therefore,""even if we accept the
contention of learned counsel for the petitioner that it is case of transfer, we do not interfere with it since the decision has been taken in the interest
of administration. Expediency of transfer is to be seen by the Government and not by the Court. There are no malafides nor violation of Rules in
taking the action. However, in the light of the facts placed before us by the Appellant in the context of impugned order dated 3041997, we hold
that it is a case of posting sequel to the promotion of petitioner to the higher grade.
Lastly, it was contended that petitioner is not being provided proper facilities in the Secretariat to enable him to work properly. Shri Attar, learned
Additional Advocate General, submitted that petitioner would be provided proper and other facilities so that he can discharge his duties to the best
of his ability and for the benefit of the people of the State.
No other point was urged.
This Appeal is allowed. Order of Single Judge is set aside. Having heard the counsel for both sides on the merits of the case, nothing survives
in SWP No. 2630/1997 and the same is accordingly disposed of.