The Rule 8(2) of the J&K Special Recruitment Rules cannot be construed in such a way so as to run contrary to the provisions of Rule 27 of the Jammu and Kashmir Civil Services: The High Court of Jammu & Kashmir and Ladakh
The Government transfer an employee from one place to other in the erstwhile State of Jammu and Kashmir (now Union Territory) on the post born on his/her cadre and that same has to be necessarily interpreted harmoniously with the mandate of Rule 27 of the Rules of 1956.In the Hon’ble High Court of Jammu &amp; Kashmir and Ladakh through the division-bench led by Justice Sanjay Dhar &amp; Ali Mohammad Magrey in the matters of Rajesh Kumar &amp; Ors. v. Government of JK &amp; Ors [CM/1152/2020]. The facts of the case are that in the year 2018, came to be appointed as Constables in the Respondent Department after their successful participation in the selection process initiated by the Respondent Department in terms of Advertisement Notice. It is stated that the appointment of the Appellants, as such, was to be governed by the provisions of SRO 202, namely, the Jammu and Kashmir Special Recruitment Rules, 2015 (“the Rules of 2015”). The counsel for the applicants submitted that the Respondents issued Order dated 6th of December, 2020. in which the Appellants were appointed and working were shifted to District Srinagar. Being aggrieved thereby, the Appellants challenged the aforesaid Order of transfer dated 6th of December, 2020 before the Writ Court mainly on the ground that as they have been appointed under the Rules of 2015, they cannot be transferred during the period of probation which, in the case of employees appointed under SRO 202, is five years. It was urged on behalf of the Appellants before the Writ Court that Rule 8(2) of the Rules of 2015 clearly provided that an appointee under these Rules shall have to necessarily work for a period of five years on the post against which he/ she has been appointed and that such an appointee shall not be eligible for transfer for whatsoever reason during the temporary service of five years.   The court concluded “It must be said here that the aforesaid Rules of 2015 have already undergone certain amendments in the shape of various Statutory Orders (SOs) issued by the competent authority/ Government and, in terms of SO 194 of 2020 dated 17th of June, 2020, the earlier prescribed period of five years of probation in relation to an appointee under these Rules stands substituted with the period of two years only. In the light of this subsequent development, the Appellants/ Writ Petitioners, who were appointed as Constables in the Respondent Department in June 2018, would have already completed their probation period of two years when the impugned transfer Order was issued in December 2020. Given this position, the main contention of the Appellants/ Writ Petitioners that they could not have been transferred during their probation period does not hold water any further. ”
Serial No. 22 Regular Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Through Virtual Mode} LPA No. 39 2020 CM No. 1152 2020 Dated: 18th of November 2021. … Appellant(s) Rajesh Kumar & Ors. Mr Syed Musaib Advocate. Government of JK & Ors. Through: Mr B. A. Dar Sr. AAG. … Respondent(s) Per Magrey JNo. 383 2020 whereby and whereunder the Petition of the Appellants Writ Petitioners stands dismissed. Briefly stated the case of the Appellants is that they in the year 2018 came to be appointed as Constables in the Respondent Department after LPA No. 39 2020 CM No. 1152 2020 their successful participation in the selection process initiated by the Respondent Department in terms of Advertisement Notice dated 8th of October 2016. It is stated that the appointment of the Appellants as such was to be governed by the provisions of SRO 202 namely the Jammu and Kashmir Special Recruitment Rules 2015 of the Rules of 2015 clearly provided that an appointee under these Rules shall have to necessarily work for a period of five years on the post against which he she has been appointed and that such an appointee shall not be eligible for transfer for whatsoever reason during the temporary service of five years. The learned Single Bench did not find favour with this argument raised by the Appellants and instead was of the opinion that Rule 8(2) of the Rules of 2015 in fact places restriction on the appointee for not seeking transfer within the first five years of service i.e. during probation period and does not take away any LPA No. 39 2020 CM No. 1152 2020 power of the employer Government to transfer such an employee even before the completion of five years of probation period. It was also observed by the learned Single Judge that this Rule 8(2) of the Rules of 2015 cannot be construed in such a way so as to run contrary to the provisions of Rule 27 of the Jammu and Kashmir Civil ServicesRules 1956 which empowers the Government to transfer an employee from one place to other in the erstwhile State of Jammu and Kashmiron the post born on his her cadre and that same has to be necessarily interpreted harmoniously with the mandate of Rule 27 of the Rules of 1956. The Writ Court accordingly vide the impugned Judgment dismissed the Petition filed by the Appellants as being without any merit. This Judgment of the learned Single Judge is questioned by the Appellants Writ Petitioners in this appeal on the grounds projected in the memo of appeal. Having heard the learned counsel for the parties gone through the pleadings on record and after considering the matter we are of the considered view that the impugned Judgment passed by the learned Single Judge is not only lucid and luminous but also in consonance with the rules law governing the subject. The learned Single Judge has rightly interpreted the mandate of the provisions of law relevant for determination of the case of the Appellants Writ Petitioners. Rule 8(2) of the Rules of 2015 clearly does not in any manner whatsoever put a bar on the Government to pass the order of transfer in relation to an appointee appointed under the Rules of 2015 even LPA No. 39 2020 CM No. 1152 2020 before the completion of five years of initial service probation period of the said appointee. Besides any provision of Rule provided in these Rules of 2015 cannot be interpreted in isolation or in conflict with the mandate of the Jammu and Kashmir Civil ServicesRules 1956 but has to be construed conjointly with the scope of the Rules of 1956. Pertinent to point out that Rule 27 of the Rules of 1956 clearly empowers the Government to transfer an employee from one place to other in the now Union Territory of Jammu and Kashmir on the post born on his her cadre. Looking at the instant case from yet another perspective it needs must be said here that the aforesaid Rules of 2015 have already undergone certain amendments in the shape of various Statutory Ordersissued by the competent authority Government and in terms of SO 194 of 2020 dated 17th of June 2020 the earlier prescribed period of five years of probation in relation to an appointee under these Rules stands substituted with the period of two years only. In the light of this subsequent development the Appellants Writ Petitioners who were appointed as Constables in the Respondent Department in June 2018 would have already completed their probation period of two years when the impugned transfer Order was issued in December 2020. Given this position the main contention of the Appellants Writ Petitioners that they could not have been transferred during their probation period does not hold water any further. LPA No. 39 2020 CM No. 1152 2020 In view of the preceding analysis we do not find any illegality or perversity in the impugned Judgment passed by the learned Single Judge as would warrant its interference from this Court. Consequently this appeal fails and is accordingly dismissed. Interim direction(s) if any subsisting as on date shall stand vacated. Pending Miscellaneous Application(s) if any shall also stand disposed of accordingly. November 18th 2021 (Ali Mohammad Magrey) Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking TAHIR MANZOOR BHAT2021.11.22 14:32I attest to the accuracy andintegrity of this document 