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2024 Supreme(Online)(CAT) 13318
CENTRAL ADMINISTRATIVE TRIBUNAL
Rajinder S Dogra, Judicial Member, Ram Mohan Johri, Administrative Member
Hafiz-Ul-Rehman – Appellant
Versus
Union Territory of Jammu and Kashmir through Commissioner/ Secretary to Government, General Administrative Department – Respondent
O.A. No. 356/2023
For the Appellants/Petitioners: Mr. Faheem Shokat Butt
For the Respondents: Mr. Sudesh Magotra, Mr. Hunar Gupta
Transfer/deputation orders passed violating Tribunal's status quo are nullity; must consider serious medical conditions and guidelines before posting to hard stations lacking treatment facilities.
Headnote:(A) Service Law - Transfer/Deputation Orders - Orders passed in violation of interim status quo directions of Tribunal are nullity - Supreme Court in Somesh Tiwari v. Union of India (AIR 2009 SC 1399) held that transfer orders passed without seeking leave from Tribunal where matter sub-judice suffer from non-application of mind; Manohar Lal v. Ugrasen (2010) 11 SCC 557 held actions in disobedience of interim orders are illegal and void. (Paras 6)
(B) Service Law - Medical grounds - Deputation to hard station denied where employee suffers serious ailment requiring lifelong specialist treatment unavailable at destination, violating guidelines mandating consideration of employee convenience and modification on certification of serious illness by Medical Board; posting to high altitude, cold climate contraindicated. (Paras 7, 4e-h)
(C) Service Law - Malafide transfers - Order quashed as punitive, issued during pendency of challenge to prior attachment order, to prevent assistance in corruption probe and departmental enquiry; no provision for 'deemed relieving' under regulations requiring formal charge hand-over. (Paras 7, 8)
Facts of the case:
Applicant challenged deputation order to high-altitude UT issued during subsistence of Tribunal's status quo order in prior OA against attachment to distant office. Suffered chronic spondylitis needing regular rheumatologist care available only at current medical college; prior courts modified transfers on same grounds. Respondents claimed manpower needs but ignored medical history and guidelines.
Findings of Court:
Impugned deputation order quashed; violated status quo, issued malafidely despite known medical condition, breached deputation guidelines and service rules on relieving.
Issues: Validity of deputation order passed during interim status quo; consideration of serious medical ailment for hard-station posting; existence of malafide/punitive intent; compliance with deputation guidelines and relieving procedures.
Ratio Decidendi: Orders defying court/Tribunal interim directions are nullities; employers must consider employee medical fitness and convenience for deputation to harsh areas per guidelines; punitive transfers unsustainable; no 'deemed relieving' without formalities.
Result: Original Application allowed; impugned order quashed and set aside. (Para 8)
| Table of Content |
|---|
| 1. factual background of impugned deputation order. (Para 1 , 2) |
| 2. violation of status quo and malafide punitive deputation. (Para 4) |
| 3. orders during status quo are nullity. (Para 6) |
| 4. malafide transfer ignoring medical condition invalid. (Para 7) |
| 5. impugned order quashed. (Para 8 , 9) |
ORDER
(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)
1. By virtue of Original Application bearing No.356/2023 the applicant assailed impugned Govt. Order No.438-JK (GAD) of 2023 dated 07.04.2023 issued by respondent No.1 by virtue of which he was deputed to the Union Territory of Ladakh.
2. The significant facts of the case as pleaded by the parties in their pleadings are summarized as under: -
i. Vide Govt. Order No.17-JK (TR) of 2023 dated 23.02.2023 issued by Administrative Secretary of the Department, the applicant was attached in the office of Regional Transport Officer, Srinagar with immediate effect and has been deemed to have been relieved. Further vide order No. RTOJ/PA/2023/184-88 dated 23.02.2023 the Accounts Officer, Regional Transport Office, Jammu relieved the applicant on 23.02.2023 (AN) at his back with direction to report to the office of RTO Srinagar for further duties.
ii. The applicant through the medium of OA No.221/2023 assailed the aforesaid orders each dated 23.02.2023 on various grounds amongst the ground that the order has been passed in violation of statutory provisions of Rule 23 of Jammu and Kashmir Civil Services Decentralization Rules, 2010 and is punitive in nature and his conduct has been adversely committed upon merely on the basis of a suspicion, thus such an order of transfer being contrary to the principles laid down by the Hon’ble Supreme Court. It was further averred that the order is also non-sustainable in view of medical ailment of applicant.
iii. The matter came for consideration before the Hon’ble Tribunal on 02.03.2023 and upon considering the matter the Hon’ble Tribunal directed, “status quo, as it exists today, qua the applicant services shall be maintained till next date of hearing”.
iv. In the meanwhile during the pendency of aforesaid matter, order impugned bearing Govt. Order No.438-JK (GAD) of 2023 dated 07.04.2023 has been passed by respondent No.1 on the basis of O.M. No.TRPT- SMGOPF/2/2021-02-TPT dated 01.03.2023 of Administrative Department to the General Administration Department.
v. Aggrieved of impugned order dated 07.04.2023 the applicant through the medium of aforesaid O.A. bearing No.356/2023 assailed the aforesaid order before this Tribunal. The Tribunal vide its Order dated 11.04.2023 stayed the deputation of applicant to Ladakh.
vi. The respondents filed their response to the aforesaid OA wherein they stated that the deputation of employees to Union Territory of Ladakh is governed in terms of Section 89(2) of Jammu and Kashmir Reorganization Act, 2019 to address the manpower requirement of the said U.T of Ladakh and the powers vest with the Hon’ble Lieutenant Governor, Union Territory of J&K. It is further averred that the inter-U.T deputation of employees is being ordered by the competent authority on the recommendations of the concerned Administrative Departments and cannot be equated with the routine deputation. Since Mr. Vipan Bangroo Senior Assistant, Motor Vehicles Department, J&K was examined in the General Administration Department and vide O.M No.GAD-SERVOGENL/9/2021 –Part (1) dated 31.01.2023 the Transport Department was requested to provide a suitable substitute for his deputation from U.T. of Ladakh as such the Transport Department vide No.TRPT-SMGOPF/2/2021 dated 01.03.2023 recommended the name of applicant, attached in the office of RTO Srinagar for deputation to U.T of Ladakh and accordingly he was deputed to the U.T of Ladakh vide Govt. Order dated 07.04.2023. It is further stated in the objections that the applicant is involved in several litigations against the Government about his transfer, taking refuge to his health grounds. The Standing Medica
