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Friday, March 4, 2016



SWP no.167/2016                             Date of decision:  04.03.2016

And SWP no.199/2016

with MP no.01/2016 in each petition



Abdul Qayoom Wani                   v.                   State of J&K & ors.



Hon’ble Mr. Justice Ali Mohammad Magrey, Judge

Appearing Counsel:


For petitioner(s):            Mr. M. M. Dar, Advocate;


For respondents:            Mr. M. I. Dar, Advocate, for 1 to 3; and

Mr. Mehfooz Nazki, Advocate, for 4.



Whether approved for reporting:              Yes / No

1.       These two writ petitions have been filed by one and the same petitioner. In the first one, the petitioner has challenged Government order no.26-Edu of 2016 dated 02.02.2016 whereby the Government in the School Education Department, on a review of attachments/deployment of staff in the School Education Department, inter alia, ordered repatriation of the officers/officials working in the Project Directorate of SSA over and above its sanctioned strength. The petitioner has prayed that respondents, more particularly respondent no.3 (Project Director, SSA, J&K at Jammu), be prohibited from acting on the aforesaid Government order and be directed to allow the petitioner to continue in his department as per order dated 21.07.2014. In the second writ petition, the petitioner has challenged order no.123/DSEK of 2016 dated 03.02.2016 issued by respondent no.2, the Director, School Education, so far as it pertains to him, with further prayers almost identical to the ones made in the first writ petition.


2.       The petitioner, a Master in the Education Department and holding the designation of Incharge Headmaster, is stated to be the Union President of Employees Joint Action Committee, President of School Education Employees Co-ordination Committee and Chairman, J&K Teachers Forum. By Government order no. Edu-Gaz/05/2014 dated 15.07.2014, the petitioner was transferred alongwith the post from State Institute of Education, Srinagar, and posted as Consultant, SSA.


3.       It appears that the Government in the School Education Department had a review of the attachments and deployments of staff made in the School Education Department which culminated into issuance of Government order no. 26-Edu of 2016 dated 02.02.2016 enjoining certain steps in the interest of administration. It, inter alia, ordered repatriation of the officers/officials working in the Project Directorate of SSA over and above its sanctioned strength. It was mentioned in the order that “...these officials are deemed to have been relieved from SSA and shall report to the authorities, as indicated in Annexure ‘A’ to this Government order, who shall issue their orders of posting within three days”. Name of the petitioner figured at serial no.3 of Annexure ‘A’ to the aforesaid Government order, showing him as I/C Headmaster. He was required to report to respondent no.2 herein, i.e., the Director, School Education, Kashmir.


4.       The petitioner, feeling aggrieved of the aforesaid Government order no. 26-Edu of 2016 dated 02.02.2016, challenged the same in writ petition, SWP no.167/2016, on the ground of it being based on mala fides of respondent no.3,  and being violative of the transfer policy framed by the Government in terms of order no.622-Edu of 2015 dated 22.12.2015.


5.       In order to elucidate and buttress the ground of mala fides, it is stated that respondent no.2 had been victimising the members of the Union, and in pursuit of his mala fide intentions, he transferred two of the union members, namely Mohammad Amin and Mohammad Afzal Bhat from their respective places. They filed writ petitions and obtained orders of stay in their favour. The petitioner in his capacity as Chairman of J&K Teachers Forum etc. made a representation to respondent no.1, Commissioner/Secretary to Government, Education Department, seeking his intervention in the transfers made by respondent no.2. When respondent no.2 came to know about such representation, he got annoyed and issued a press report which came in press, including ‘the Kashmir Monitor’ in its issue dated 30.01.2016, saying that he will not tolerate unionism in his department. It is alleged that it was pursuant to the aforesaid extraneous considerations of respondent no.2 that respondent no.1, with an object to shelter respondent no.2, issued the said Government order no. 26-Edu of 2016 dated 02.02.2016, repatriating the petitioner from SSA. It is also averred that respondent no.1 formulated transfer policy / guidelines to govern transfers in terms of Government order no.622-Edu of 2015 dated 22.12.2015 whereunder transfer carnivals “transfer melas” in each and every district were to be held and teachers, who had two or more years of stay at a place, were to be transferred. It is stated that the petitioner had not yet completed two years’ tenure in SSA.


6.       The aforesaid writ petition, presented before the Registry of the Court on 04.02.2016, came up for consideration before a Coordinate Bench of this Court on the very same day. The Court, while issuing notice, directed that operation of the impugned order to the extent of the petitioner shall not be acted upon.


7.       It appears that prior to presentation of the aforesaid writ petition, SWP no.167/2016, before the Court by the petitioner and, consequently, prior to passing of the Court order dated 04.02.2016 referred to hereinabove, respondent no.2, Director, School Education, Kashmir, issued order no.123-DSEK of 2016 dated 03.02.2016 according sanction to the transfer and posting of numerous I/C Headmasters and equivalents mentioned therein. The petitioner’s name figures at serial no.81 therein and he stands posted at HS Ogmuna, Baramnulla.        


8.       The petitioner, therefore, on 08.02.2016, came up with another writ petition, SWP no.199/2016, before the Court challenging the aforesaid order dated 03.02.2016 issued by respondent no.2 on the very same grounds as were taken in the first writ petition. Additionally, it is pleaded that since the Court by order dated 04.02.2016 passed in the petitioner’s earlier writ petition, SWP no.167/2016, had directed that operation of the order dated 02.02.2016, repatriating the petitioner from SSA, shall not be acted upon, the petitioner would be deemed to have continued at SSA and respondent no.2 could not have ordered his transfer/posting.


9.       The aforesaid writ petition came up before the Court on 12.02.2016. However, the Court issued only notices. No order of stay was passed.


10.     Before proceeding further, it may be mentioned here that the petitioner has arraigned the fourth respondent in both the writ petitions with the following particulars:


“Faisal Rasool Shah alias Dr. Shah Faisal S/o Ghulam Rasool Shah R/o Sogam, Kupwara at present Hyderpora, Srinagar”.


No designation or official particulars, or anything like that, has been indicated against the 4th respondent to show as to in what capacity he has been arraigned as such respondent in the writ petition. However, though not indicated so in the array of respondents, this respondent seems to be the incumbent Director, School Education, Kashmir. The form his particulars have been mentioned in the array of respondents, smacks of the over awing mannerism and degradation of socially accepted norms of respect and discipline. If a governmental functionary is to be impleaded as a respondent in his personal capacity, he is to be so arraigned by giving his official address, unless it is shown that the actions alleged against him exclusively fall outside his official domain or governmental functions. That is not the case here.  The object of the style in which the particulars of respondent no.4 have been given, inferentially, is nothing but deliberate expression and demonstration of scanty regard and rebellion behaviour which does not behove a government servant, particularly so when he claims to be spearheading the employees. It is unfortunate that the learned counsel appearing for the petitioner has allowed himself to be driven by the emotions and sentiments of his client while drafting the writ petition.


11.     Be that as it may, the Director, School Education, has filed his separate objections to the writ petition, while the Government has filed its own objections in both the writ petitions, vehemently denying the assertions and allegations made by the petitioner in the two writ petitions. I will mention and refer to the relevant replies so submitted by the respondents at appropriate place of this judgment.


12.     Since the matter involved urgency, the learned counsel for the parties stated at the Bar that the two writ petitions could be heard for final decision/disposal at the admission stage. Accordingly, the learned counsels were heard on 23.02.2016 and 25.02.2016.


13.     I perused the record brought on the case files and considered the matter.


14.     The pivot of the two writ petitions is the ground of mala fides alleged by the petitioner. In fact, all the grounds raised by the petitioner in the two writ petitions taper to, or spiral from, the very same allegation. As mentioned above, the allegation is sought to be not only made out but supported by the news report carried by a local daily, ‘The Kashmir Monitor’ in its issue dated 30.01.2016 under the caption “Will not tolerate unionism in my deptt: Dir Education”. I think it appropriate to quote hereunder in its entirety the news report so carried by the newspaper. It reads thus:


“Srinagar: Unfazed by the Jammu and Kashmir Teachers Forum (JKTF) proposed gherao to Directorate of School Education, Kashmir today (January 30), Director School Education, Dr. Shah Faisal said he has pledged to uproot the menace of unionism from the education department.


While talking to the Kashmir Monitor, the first IAS topper from J&K who presently heads the vital education sector said this unionism has to end as it has not only created indiscipline in the department but has marred its functions.


‘I will continue to clean the system and bring reforms in it come what may. Without succumbing to any pressures and threats, I will continue to bring much needed changes in the education sector. These union leaders will also go to the schools to teach students for which they are being paid’, he said.


Shah Faisal said unionism also existed in the police department, but it was later abolished in 1980’s, that brought discipline in the police department. ‘So in the same (sic) this unionism has to end in a sensitive department like education. My fight against it will continue,’ he said.


He said other departments that have been marred by the unionism are Urban Local Bodies, Transport department, Consumer affairs and Public Distribution (CAPD).


‘But I won’t tolerate this in Education department. Nothing can harm or stop me from this. I am ready to face whatever the consequences. The transfers of people in education department will continue so that better results are yielded’, he said.


When contacted KLTF President Abdul Qayoom Wani said he is a government employee and is ready to serve wherever he is being posted. ‘Even if I am posted in a far flung area, I am ready to serve. I am a government employee,’ he said, adding his fight is against the pick and choose policy.


‘Only selected persons are being transferred. We won’t let that happen,’ he said.


Wani said as far as the question of unions are concerned, nobody can stop him from fighting for their rights under the banner of any union. This is our constitutional right. Shah Faisal is no entity to stop us. Unions exist in every part of the world,’ he said.


‘Director sahib doesn’t have Allah din Ka chirag that tells him who is working and who is not. Everyone is giving their best’.”


15.     Mala fide, as we know, means bad faith. An action which may be founded on dishonest belief or purpose would be mala fide. The Supreme Court in Municipality of Bhiwandi & Nizampur v. Kailash Sizing Works, AIR 1975 SC 529, observed that reckless disregard of consequences and mala fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and mala fides. The definition of the expression ‘good faith’ or ‘done in good faith’ as given in Section 3(14) of the General Clauses Act, Svt. 1977 (1920 AD) is that a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. Thus, an action taken in good faith – with an honest belief or for an honest purpose – would not be mala fide; it would be an action taken bona fide. Exercise of a power vested in an authority ‘in good faith’ has also been interpreted to mean ‘for legitimate reasons, not for extraneous, irrelevant considerations or reasons.


16.     Before analyzing the statement attributed to respondent no.2 as carried by the Kashmir Monitor, it would be proper to find out what he has to say in this regard.


17.     It is not that respondent no.2 has totally denied to have expressed or said anything. He has categorically denied the allegations of mala fides. His assertion is that the reporting published in the newspaper ‘The Kashmir Monitor’ on 30.01.2016 is ex facie false and grossly erroneous. In paragraph 5 of the objections filed by him, the Director has stated that he had, in fact, expressly stated that he was in favour of a healthy union and that he personally appreciated good unions and believed that a good union can contribute towards growth of any department. It is averred that the statement made by him also came to be reported in ‘Kashmir Observer’ on the very same day. Respondent no.2 has appended a downloaded copy of the said reporting with his objections. It bears the caption “DSEK seeks Teachers Cooperation for ‘Reforming’ Education System”. I think it would be appropriate to quote hereunder the said report as well. It reads thus:


“SRINAGAR: Seeking cooperation from the teachers and Teachers Forum for the reform of the education sector for building future of the state, Director School Education Kashmir Shah Faesal said that the issues of protesting teachers can be discussed within the walls of the department not in public.


‘We should discuss departmental matters within the walls of the department. The issues and grievances can be addressed in the department not on streets, ‘Shah Faesal told KNS.


Faesal said that the government has taken decisions for the reform of the education and in favour of the teachers.


Saying that the doors of the teachers are open in the directorate for the genuine demands, he said that he is meeting teachers every day for listening to and addressing their issues. 


Faesal said that almost all the teachers are supporting the recent decisions taken by the department. ‘The decisions taken by the higher authorities are fully justified and are in favour of the teachers,’ he said.


He said that government is ready to fulfil the genuine demands of the teachers. ‘I am not against the unionism and I personally appreciate the good unions as I believe a good union can contribute a lot to any department,’ Faisal said.


The director said that teachers taking to streets do not create a good impression about them among students as teachers are known as builders of any society.


He said government is ready to fulfil all the genuine demands of government (sic).”


18.     Apart from the fact that the Director has explicitly denied the allegations, a bare reading of the two news items – one reported by the Kashmir Monitor in its issue dated 30.01.2016 and the other carried by the Kashmir Observer on the same day, both quoted above – portray an absolute contrast about what had professedly been said and expressed by respondent no.2. The two reports are wholly different and give two different impressions about what had been said. The fact or the content of the report as it appears in the news item carried by the Kashmir Observer is not denied by any person, muchless the petitioner. In that view of the matter, the content of the news item appearing in the daily the Kashmir Monitor is not only denied but, on the contrary, it is shown that instead something different was said. In such a situation, there being two types of news reports available before the Court, this becomes a case of disputed questions of facts. It is not within the competence of this Court in its writ jurisdiction to embark upon an enquiry into the questions of disputed facts to determine which of the two news items reports the correct version of the statement made by respondent no.2. On that count alone, these writ petitions are not maintainable.


19.     Coming to another aspect of the matter, even if it be assumed that whatever is reported in the news item appearing in the Kashmir Monitor had been actually said by respondent no.2, does it smack of any recklessness or dishonesty on his behalf, and whether the power, if any vested in respondent no.2 in this regard, has been exercised for any extraneous, irrelevant or non-germain considerations, are the questions that fall for determination. It is to be borne in mind that order dated 02.02.2016, whereunder the petitioner was repatriated from SSA and directed to report to respondent no.2, was issued by the Government in the School Education Department, not by respondent no.2. Respondent no.2 did not have the power to repatriate the petitioner from SSA or to post him there or to continue him there. Therefore, nothing on that count can be attributed to respondent no.2. It is preposterous on the part of the petitioner to say that the Government passed the order in question to shelter respondent no.2. There is nothing brought on the record to even remotely suggest that respondent no.2 had any say in the matter or that he, in fact, did influence the Government to pass such orders. On the contrary, the reason that effectuated the order is disclosed in para 2 of the preliminary objections filed on behalf of the Government. It is averred therein that as on 31.01.2015, there were about 3000 officials who were posted in various departments in non-teaching capacities. As a result of this, the Education Institutes / Schools in far flung areas were suffering. Faced with the situation, the authorities concerned took a policy decision that all the attachments / transfers of teaching staff to non-teaching positions shall be revoked forthwith. Accordingly, a Government order, being Government order no.08-Edu of 2015 dated 15.01.2015 was issued whereby all attachments/deployments were revoked with immediate effect. Thereby, majority of such officials stood repatriated. However, there were complaints regarding rampant attachments in the School Education Department. Accordingly, details were sought by the Government in terms of letter dated 19./01.2016. On receipt of such information, it was brought to fore that 340 officials in Jammu Division, 251 in Kashmir Division and 7 in the Project Directorate, SSA had still been attached. It is averred that it was noticed that while some officials were being used for ministerial work, some were being used for verification of degrees. It was also revealed that some officials were deployed in the centrally sponsored SSA beyond sanctioned posts even though there was no functional requirement for their deployment in the office while at the same time various schools continued to face acute shortage of teachers. Faced with such situation, the Government, respondent no.1, issued order no.260-Edu of 2016 dated 02.02.2016 whereby general directions were issued to the Directors and other field functionaries for detachment of attached officials. Since the Administrative Department alone is empowered to transfer officials from one Directorate to another and from SSA to the Directorates, therefore, the officials deployed in SSA were repatriated by the Government and their further posting was left to be done by the concerned cadre controlling authority.


20.       Going by the above factual details, there remains no scope to doubt the object behind the whole exercise. It is not that only the petitioner, because of him being the President of the Union was repatriated and transferred, or that the other members of the Union alone, mentioned in the petition to support the ground of mala fides, were transferred; the annexures placed on record by the petitioner himself demonstrate that large number of teachers/Masters/I/C-Headmasters were so transferred. It is not a case where the petitioner has been singled out muchless for any extraneous consideration or that there has been any pick and choose resorted to by respondent no.2. It otherwise sounds strange and illogical that a Master is designated as Incharge Headmaster, but does not actually hold such a charge. The relevant Recruitment Rules do not envisage any such designation. Such a designation is a misnomer. Incharge designations connote a situation where a person is actually put in the charge of a higher post to factually discharge its functions. It speaks of exigency of a service demanding immediate and effective arrangements, which cannot be used as a garb for conferment of fortuitous benefit. Be that as it may, coming back to the news item as carried by the Kashmir Monitor, the portions within quotes therein, even if attributable to respondent no.2, though he has specifically denied the same and produced the contradicting material on record, speak of  cleaning the system and bringing reforms in the Education Department. Saying that the union leaders will also have to go to the schools to teach students would not in any way come within the definition of mala fides. They are really being paid their salaries from public money only for that purpose. In fact, in the very same news item, it is reported that the petitioner himself had said that he, being a government employee, is ready to serve anywhere he is posted, be it a far flung area. This is not any concession on his part, transfers and postings are exigencies of service. If a government servant feels aggrieved of his transfer on legally recognised grounds, the law has provided a remedy; he has a right to approach the Court of law. It is true that right to form associations is constitutionally guaranteed, but this right carries with it certain limitations as well. Right to form an association or union does not reserve or create a right in any union office bearer to seek posting of his choice or to refuse to obey a transfer and posting ordered in the interests of administration. The right to form an association or a union does not mean right to achieve every object, nor does it confer a privilege or grant a license on any leader of an association or union to obliterate the hedges of discipline and abandon or shirk his official duty for which he is being paid his salary.

21.     Looking at it cumulatively, wholesomely and from broader perspective, it cannot be said that transfer of the petitioner is not based on the honest intention or good faith or that the power has been exercised for extraneous, irrelevant and/or for any non-germane consideration.  


22.     It may be observed here that during the course of hearing, the learned counsel for the petitioner sought to buttress his submissions by the judgments of the Supreme Court in Asom Rastrabhasa Prachar Samiti v. State of Assam, AIR 1989 SC 2126; Suresh Chandra Sharma v. Chairman, UPSEB, 2005 AIR SCW 1133; and Gambhirsinh R. Dekare v Falgunbhai Chimanbhai Patel, (2013) 3 SCC 697. I have minutely gone through these judgments. There is nothing in these judgments relevant to the point at issue in the present writ petitions. On the contrary, law is settled that transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service. Reference in this connection may be made to the decision of the Supreme Court in State of U. P. v Gobardhan Lal, AIR 2004 SC 2165, cited and relied at the Bar by Mr. Mahfooz Nazki, learned counsel appearing for respondent no.4. The relevant paragraphs of the judgment are quoted hereunder:


“7. It is too late in the date for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.


8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.


9. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any Authority as well as the basic concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers...”


The aforesaid judgment squarely covers the points raised in the instant writ petitions, including the one that certain guidelines framed pursuant to Government order no. 622-Edu of 2015 dated 22.1`2.2015 were violated. Above being the position of law enunciated by the Apex Court, the ground of mala fides, as discussed above, is not made out. It is worthy of notice here that the petitioner alleges that respondent no.2 was annoyed because of the representation against certain transfers made by him to the Government which prompted respondent no.2 to issue the press report in question. The news item, relied upon by none other than the petitioner to support the allegation of mala fides, instead speaks of the gherao by the Kashmir Teachers Form of the Directorate of School Education which, according to the newspaper report, was the occasion for the Director to make the statement in question. The very genesis of the statement is thus also contradicted.     


23.     Contesting the claims and allegations of the petitioner, Mr. M. I. Dar, learned counsel appearing for respondent no.1, cited and relied upon some decisions of the Supreme Court. I will briefly refer to few of these decisions hereunder.


24.     In Quamarul Islam v. S. K. Kanta, AIR 1994 SC 1733, at p 39, the Supreme Court held, “newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and publisher, PW4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act”.


25.     In E. P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3, at p 92, it was held, “secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility”.


26.     In Kedar Nath v State of Punjab, AIR 1979 SC 220, it was observed that although the appellant therein had based his case almost entirely on mala fides, he did not succeed in proving the allegation. What he had to prove was not malice in its legal sense, as that was not his case; he had to prove malus animus, indicating that the respondent State was actuated either by spite or ill will against him, but no such particulars were furnished by him. The appellant could also not establish lack of bona fides.


27.     In S. C. Saxena v Union of India, (2006) 9 SCC 583, the Supreme Court observed that a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.



28.     In National Hydroelectric Power Corpn. Ltd. v Shri Bhagwan, (2001) 8 SCC 574, the Supreme Court laid down that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.


29.     In Chief G. M., N. E. Telecom Circle v. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813, it was laid down that a government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. The transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and compelling grounds rendering the transfer order improper and unjustifiable


30.     In Rajendra Roy v. Union of India, (1993) 1 SCC 148, the Apex Court observed that it may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.


31.     Applying the law so enunciated by the Supreme Court from time to time to the facts attendant to the instant writ petitions, neither any mala fides against the respondents, more so against respondent no.2, are made out, nor is infraction of any statutory rule governing the transfers in Education Department brought to the notice of the Court. These writ petitions, consequently, deserve to be dismissed, being without any merit and unnecessary.




32.     Further, it may also be mentioned here that Government order no.26-Edu of 2016 dated 02.02.2016, while ordering repatriation of the officers/officials working in the Project Directorate of SSA, in express terms stipulated that these officials are deemed to have been relieved from SSA and shall report to the authorities as indicated in Annexure ‘A’ thereto, who shall issue their orders of posting within three days. Thus the petitioner stood relieved from SSA with the issuance of the aforesaid Government order on 02.02.2016 itself. Further, respondent no.2, to whom the petitioner was enjoined to report, in turn issued order dated 03.02.2016 ordering the posting the petitioner. Strictly speaking, thus the Government order dated 02.02.2016 stood implemented and its follow up action also stood completed as on the date this Court passed order dated 04.02.2016. Once the action that a government order contemplates is completed, the operation of the order comes to an end and it is reduced to nothing more than a record of reference. Had the Government order not contained the words “are deemed to have been relieved”, the position may have been different.

33.     For all what has been discussed, observed and held hereinabove, these writ petitions are dismissed together with the connected miscellaneous petitions.

34.     It is reiterated here that though the action that the government order dated 02.02.2016 contemplated was completed the moment it was issued, yet for maintenance of sanctity of the Court order dated 04.02.2016, it is ordered that interim directions, if any, subsisting shall stand vacated.


35.     No order as to costs.

 (Ali Mohammad Magrey)    




Syed Ayaz Hussain, Secretary

‘Isaac Newton’ picked up gun 12 days after PDP became BJP’s partner

Hizb suffers setback as 3 Burhan associates killed in Tral encounter; thousands attend funeral processions

Ahmed Ali Fayyaz

JAMMU, March 3: Mufti Mohammad Sayeed’s trademark criticism of National Conference and Congress, on the day of launching his own Peoples Democratic Party (PDP) in July 1999 and thereafter, was that the two parties’ coalition in 1987 created an opposition vacuum in Jammu and Kashmir. He used to argue that the Muslim United Front (MUF)---and subsequently the infinite secessionist insurgency---was the creation of Rajiv-Farooq accord.

After months of virulent campaigning against Prime Minister Narendra Modi and his ‘Mission-44 plus” when Mufti went for the anti-climax, and formed PDP’s coalition with Modi’s BJP on March 1, 2015, he ironically seems to have created a bigger vacuum. Unknown number of the Valley’s youths, who had been mobilised in PDP’s favour for the ‘counter mission of subverting Modi’s Mission 44 Plus”, abandoned their studies and joined the militant ranks. 19-year-old brilliant student, Mohammad Ishaq Parray of Laribal Tral, was one of the youngsters who picked up the gun in 12 days of Mufti’s taking over as Chief Minister.

Paradoxically, Ishaq Parray, who lived close to the famous Shikargah sanctuary and had an ambition to become a scientist or a doctor, had secured an incredible 98.4% marks in his Matriculation exam. Even in Class 12th, he obtained over 85%. On account of his sharp comprehension of science and mathematics, coupled with his ambition, Ishaq came to be known as ‘Isaac Newton’.

On March 13, 2015, ‘Newton’ started his maiden action in militancy. Newton’s Third Law of Motion---‘To every action, there’s an equal and opposite reaction’---culled out three young lives, including Ishaq’s, when troops swooped down on their hideout and killed all the three holed up militants in a single-storey house at Mir Mohalla, on the southern outskirts of Dadsar. This is the village which, for over a decade, won the sobriquet of the Kashmir militancy’s capital as it produced the highest number of militants---around 50, more than any other village in the Valley.

Interestingly, Dadsar lives in a contrast. It also created the first---and till date the last---Divisional Commander of the Indian Army, Major General Amin Nayak. Even the Hizbul Mujahideen’s youth icon Burhan Wani, in whose praise slogans were shouted last month even at Jawahar Lal Nehru University, in New Delhi, lived here at Amlar hamlet before his father Muzaffar Wani shifted residence to Shariefabad, situated on the outskirts of Tral.

Dadsar, the graveyard of over 50 militants and civilians, reverberated with deafening gunfire all through last night as the threesome---‘Isaac Newton’, Asif Ahmad Mir alias Muaviya of the same neighbourhood and Ashiq Ahmad Bhat alias Obaida of Chursoo---made sustained efforts to escape. Labouring under the apprehension that massive crowds could gather next morning and disrupt the operation, as happened in several other encounters in Pulwama district, troops destroyed the house but only after the inmates were evacuated safely. All the three militants, in the age group of 19 to 24 years, were killed and their partially charred bodies were recovered and handed over to the residents for the last rites.

Luck had favoured Asif on July 3 last year when he got hit in an encounter at Saimoh but managed to escape. His secret visit to his aunt’s house proved to be fatal on Wednesday night.

“Much more than the encounter, we were apprehensive of a possible law and order situation. However, thank God, the residents did not create much of trouble and the funeral of the three militants passed off smoothly”, SSP Awantipore Mohammad Irshad told STATE TIMES. He said that three to four thousand people participated in the three militants’ funeral procession, though independent reports, corroborated by a Police agency, insisted that over 6,000 attended Asif’s funeral and 3,000 each Ishaq’s and Ashiq’s, amid the routine anti-India, pro-azadi and pro-Pakistan slogans. Police chose to stay away.

“It was a neat and clean operation that ended without any collateral damage. Protests and paying homage to the militants doesn’t bother us much. That essentially is the job of the local Police and politicians. They know how to deal with it”, said a senior Army officer associated with the operation.

“The sacrifices of Muhammad Ishaq, Aasif Ahmad Mir and Ashiq Hussain Bhat revealed that every Kashmiri is yearning for freedom,” Hizbul Mujahideen supremo Syed Salauddin said in praise of the three militants in a statement from Pakistan. He regretted that “some elements” were assisting Indian armed forces to eliminate militants “for their vested interests.”

“There are some elements that indulge in anti-freedom activities and work for Indian agencies as informers. The involved persons will also get exposed,” the Hizb chief said while extending sympathies and condolences to the bereaved families.


Thursday, March 3, 2016

Governor’s rule doesn’t care two hoots for PSC rules

Just one out of 40 Govt. departments responds to PSC letter; Babus sitting over vacancies for years and decades; Blue-eyed boys continuing indefinitely on stop-gap arrangement

Ahmed Ali Fayyaz

JAMMU, March 2: Administrative secretaries of all the Government departments are bound by the Jammu and Kashmir Civil Service (reference of vacancies and holding of meetings of Departmental Promotion Committees) Rules 2005, notified by the Government on June 14th, 2005, to refer all the gazetted and non-gazetted posts, falling vacant in a particular year, to the Jammu and Kashmir Public Service Commission (PSC) and Services Selection Board (SSB) respectively every year by 15th of January for the purpose of making direct recruitment without delay.

Rule 2 says: “The departments shall refer vacancies falling under direct recruitment quota to the Public Service Commission and Services Selection Board, as the case may be, by the 15th of January every year”.

Under Rule 3, all the Administrative Departments are bound to submit Annual Status Reports to the General Administration Department (GAD) by 31st of January every year reflecting therein the number and status of the vacancies, posts referred for direct recruitment or promotion to the PSC, SSB and other recruitment committees and Departmental Promotion Committees (DPCs).

Since most of the bureaucrats had been sitting over the vacancies over the last many years and very few of them had shown respect for the statutory regulations in Omar Abdullah’s and Mufti Mohammad Sayeed’s governments, Chairman PSC Lateef-uz-Zaman Deva asked his team of officials to ensure that all the administrative secretaries adhere to the obligation. Vide No: PSC/Adm/Misc/2015, Dated 27-11-2015, Secretary PSC mailed a communication to Commissioner-Secretary GAD, requesting him to collect the vacancies from respective departments and furnish same to the PSC.

The PSC communication pointed out that the 2005  Rules were a fall-out of the Supreme Court of India decision in case titled Suraj Prakash Gupta & Others versus State of J&K and Others. It observed: “An exercise undertaken by the Commission reveals that the aforesaid Rules have been violated by almost all the departments except General Administration Department”.

Sensing the politicians’ and the bureaucrats’ vested interest in perpetuating the infamous stop-gap arrangement, Secretary PSC recorded in the letter: “Under Rules of 2005, the tendency to institute stop-gap arrangement against promotion quota and make-shift arrangements against direct recruitment quota was intended to be checked but the same does not seem to have fructified and in the process there is apprehension that vacancies which have become due for direct recruitment have gone un-utilized paving way for make-shift arrangements by the Administrative Departments which is being resorted to as a convenient method to perpetuate ad-hoc system at the cost of direct recruitments and at times, to obviate the need for production of documents statutorily required for utilization of promotion quota”.

“It concluded: “I am directed to request you kindly to impress upon all the Administrative Secretaries to adhere to the Rules of 2005 and meanwhile furnish information in accordance with the format given hereunder below with effect from 1-7-2005”.

In a startling disclosure on Wednesday, Chairman PSC Mr Deva revealed to STATE TIMES, in response to a question, that out of over 40 Government Departments, only the Cooperative Department had responded to the PSC missive and furnished the information in the last three months. “I am shortly going to take up the matter of this non-cooperation with His Excellency, the Governor. I am left with no other option”, Mr Deva asserted. “We have started to work with unflinching commitment and we will ensure that all the vacancies are referred to PSC and all the selections made within minimum possible time”.

Mr Deva said that some 650 posts of Lecturers were currently lying vacant in Higher Education Department. Actual number of vacancies of Range Officers Grade-I and ACFs in Forest and related departments, where most of the junior and less qualified incumbents have been working on stop-gap arrangement [“incharge ROs”, “incharge ACFs” and “incharge DCFs”] since long in brazen violation of the Supreme Court directions, was still not known. This newspaper has reported how just 59 ROs and 84 ACFs have been recruited under direct quota in Forest Department in 32 years--- from 1984 to 2016.

As reported in Wednesday’s issue of STATE TIMES, previously the PSC has spent 7 to 9 years in making selection of a small number of Range Officers-I and Assistant Conservators of Forest (ACFs) for Forest Department. Principal Secretary Forest Rakesh Kumar Gupta is among the administrative secretaries who have treated the PSC communication with contempt.

More surprisingly, even the services regulator, GAD, has not furnished the list of the posts fallen vacant under its own jurisdiction. Commissioner-Secretary GAD Gazzanfer Hussain did not respond to a call. However, a middle-rung bureaucrat insisted that GAD had lately completed its own exercise and compiled a list of 250 to 300 junior KAS posts. According to him, these vacancies would be referred to PSC in about a week for making selection through J&K Combined Services Competitive Examination.

Chief Secretary B.R. Sharma maintained that he had no knowledge why the administrative secretaries had not referred the vacancies to the PSC. “There are standing instructions that all the vacancies should be referred to the PSC without delay. I will check if there has been any default and if yes why”, Mr Sharma told STATE TIMES.


Wednesday, March 2, 2016

In 32 years, J&K Forest Department appointed just 59 Range Officers, 84 ACFs

J&K PSC took 9 years to select 35 ROs, 7 years to select 15 ROs, 7 years to select 40 ACFs

Ahmed Ali Fayyaz

JAMMU, March 1: In a bizarre contrast to their tall claims on conservation and management of the State’s rich, yet diminishing, sylvan cover, neither the politicians nor the bureaucracy in Jammu and Kashmir has discharged its duty to protect the supposedly top-priority Forest sector. Believe it or not, it is a fact that a total of 59 Range Officers Grade-I and just 84 Assistant Conservators of Forest (ACFs) have been directly appointed in the Territorial Forest Department in the last 32 years.

Most of the ACFs appointed in 1984 have either retired from service or are now close to their superannuation as Conservators of Forest (CF). Similar is the case with the ROs-I appointed in early 1980s.

Since there has been no re-organisation of the department’s lower and middle technical levels for the Kashmir Forest Service (KFS) officers like ROs, ACFs, DCFs/DFOs in the last over 50 years and most of the incumbents have already retired, the number of directly recruited and technically qualified officers has drastically reduced. On the other hand, not even 3% of the 800 unemployed Forestry graduates and post-graduates have been able to get a job in Forest Department.

IAS-IFS commune has taken due care of the promotional prospects of the IFS regular recruits, who are mostly from non-J&K States. With the re-organisation being restricted to only the senior IFS positions, the sanctioned strength of Principal Chief Conservators of Forest (PCCFs) has risen to 3, Additional PCCFs to 7, CCFs to 16 and CFs to 21. On the other hand, the sanctioned strength of ROs-I has been static at 220 and ACFs at 64 in the last 50 years. Under rules, re-organisation of cadres is supposed to be executed once in 10 years.

According to the Forest Department’s official website, there are a total of 66 ROs-I (out of whom 35 have been placed as “incharge ACFs/DCFs” in violation of the Supreme Court of India guidelines and without the approval of Public Service Commission (PSC) and Departmental Promotion Committees (DPCs). Total number of ROs-II is just 34. Even some ROs-II have been posted as “incharge ACFs”. Blue-eyed “incharge ACFs”, who are substantively either RO-I or RO-II, have been conveniently functioning as Divisional Forest Officers (DFOs) as the successive governments have not appointed any DCFs in their divisions.

Politically well-connected of the “incharge ACFs” have been simultaneously holding charge of two or even three divisions.

An application, filed under Right To Information Act by Jammu-based activist Prof S.K. Bhalla, has revealed how Ministers and bureaucrats of successive governments have been insensitive and irresponsible in replenishment of technical human resource in Forest Department.

According to the Government’s reply, after the 1985 direct recruitments, it was on 1-3-1994 and 5-7-1994 that Forest Department referred 21 posts of ROs-I for making selection to J&K PSC. Later, 16 more posts of RO-I were referred to PSC on 24-11-1995 and 15-12-1995. PSC took around 9 years to complete the process. On 23-12-2003, it issued the selection list in favour of 35 candidates who were subsequently appointed as RO-I by Forest Department in 2004.

The second direct recruitment process started in 2004. On 19-8-2004 and 22-3-2005, Forest Department referred 23 vacancies of RO-I for selection of candidates to PSC. Again working at snail’s pace, PSC took 7 long years to complete the process. It issued the selection list of 15 candidates on 22-7-2011 and Forest Department issued the formal appointment orders in favour of the 15 candidates on 4-8-2011.

Subsequently appointment of one candidate in Open Merit category and 8 more in other reserved categories was made 11-6-2012, 18-9-2013 and 24-12-2013.

With this a total of 59 ROs-I were appointed by Forest Department from 1984 to 2016. While as 30% of the RO-I vacancies are supposed to be filled up through direct recruitment by PSC, 70% of the vacancies stand reserved for promotion of ROs-II and Foresters having DDR training.

As regards the ACFs, after 1984, the first direct recruitment through PSC took place in 2004. On 24-5-2004, after years of sluggish exercise by PSC, Forest Department appointed 42 candidates as ACFs.

The second and the last process of direct recruitment of ACFs started in 2004. On 18-6-2004 and 25-1-2006, Forest Department referred 40 vacancies of ACFs for selection of candidates to PSC. After 7 long years, PSC issued selection list in favour of 40 candidates on 16-5-2011 who were subsequently appointed as ACFs by Forest Department on 18-5-2011. Later 2 more ACFs were appointed on 1-12-2011.

Thus a total of only 84 ACFs have been recruited through PSC by Forest Department of J&K Government from 1984 to 2016.


Monday, February 29, 2016

Mehbooba asks Delhi to involve Pakistan in 2002-type Kashmir initiative

‘I won’t accept CM’s chair that denies PDP role in peace-building’

Ahmed Ali Fayyaz

JAMMU, Feb 28: In her first open-air speech at a public rally after her father Mufti Mohammad Sayeed’s death on January 7th, Peoples Democratic Party (PDP) President Mehbooba Mufti claimed on Sunday that she would not accept a puppet Chief Minister’s chair that would deny her party a 2002-type role in peace-building and promoting friendship between India and Pakistan. Asking New Delhi to engage Islamabad in a political process, she said late Mufti’s 2002 initiative of Indo-Pakistan friendship was “in danger today”.

“Jammu and Kashmir is not about governance alone. The state is entangled in assorted political and economic complexities both on internal and external fronts, which need to be tackled with resolve through holistic measures to ensure sustainable peace and stability in the State,” Mehbooba said while addressing a PDP workers convention at headquarters of Anantnag district in her home constituency of South Kashmir. She was there to carry forward her party’s membership drive which she launched from Srinagar on last Sunday.

“There’s going to be no peace until India and Pakistan halt their confrontation, until they sit together and respect each other. An atmosphere of sustained mistrust won’t yield anything positive. Today, I don’t see NC or Congress as a challenge to PDP but the fact that Mufti Mohammad Sayeed’s 2002 Indo-Pakistan friendship has fallen in danger. The essence of my father’s initiative was friendship between the two countries. It led to ceasefire on the borders and opening of roads through LoC. That’s in danger today. Another challenge to PDP is the unemployment of thousands of our youths. Many of them are picking up gun”, Mehbooba said with a reference to the recent fidayeen attack and three-day-long encounter between militants and security forces at EDI complex.

“I am not an ambitious politician who would be hankering after power for getting the status of Chief Minister. I am not dying to see four flags on my Chief Ministerial car and a fleet of Ministers following me with pomp and show. Let it be clear that I am not going to accept the Chief Minister’s chair that doesn’t benefit our youth, that doesn’t ensure development and that denies a 2002-type role to the PDP”, Mehbooba, leader of the single largest party with 28 MLAs and the Chief Ministerial candidate, said.  

“While on J&K’s internal front there are issues of systemic political and economic disempowerment, security concerns, mounting alienation, sense of deprivation, wanton exploitation of state’s natural resources, unemployment, social issues  and unaccountability, on the external front there are issues with Pakistan,” she said and added that no government in J&K would succeed or make a mark unless a holistic approach is adopted by the Centre and the State Government to address all these issues with a concerted effort and with tangible measures.

She said unfortunately the situation in the State started sliding back into uncertainty following the reversal of the development, resolution and reconciliation process set off between 2002 and 2005. She asserted that PDP’s alliance with Congress in 2002 and with BJP in 2015 was guided solely by the “agenda of peace, development and reconciliation” in Jammu and Kashmir.  

“That was our challenge and that will remain so. If we really want to turnaround the situation in Jammu and Kashmir, we will have to not only involve Pakistan in a sustained dialogue but at the same time take some bold political and economic initiatives on the internal front to address the concerns of the State’s people and do away with the past injustices done with them,” she said and added unless such measures are taken no government whether formed by PDP, NC, Congress or BJP is going to make any difference to the people especially at a time when alienation and cynicism has again started taking roots especially among the State’s young population.

Mehbooba said gun and violence were no solution to any problem as the gory era of bloodshed had only brought death and destruction to the State leaving behind a trail of tragedies in almost every family. “We have already seen almost a generation of youth falling prey to the senseless violence and I urge the gun-yielding youth to take cue from the accomplishments of their counterparts and make a mark in the academic and professional fields instead of falling prey to the machinations of the proponents of death and destruction,” she said.


[Published in today's STATE TIMES]