Full Judgment Text
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PETITIONER:
MOHD. SULTAN GANAI
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR & ORS.
DATE OF JUDGMENT: 05/05/1998
BENCH:
S.P. BHARUCHA, V.N. KHARE
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
V.N. KHARE, J.
Leave granted.
Heard counsel for the parties . This appeal is directed
against the order dated 22.4.1997 passed by the High Court
of Jammu & Kashmir in LPA No. 106/97, whereby the High Court
has, after modifying the order dated 12th March 1997,
directed the Director, School Education, respondent No.2
herein, to post an officer other than the appellant, as
Chief Education Officer, Pulwama.
In the year 1994, respondent No.3, Syed Zuhara Jabeen,
was posted as Chief Education officer, Pulwama, When the
State Government, on the allegations that she committed
number of irregularities, mal-practices and misappropriated
Government funds, by an order dated 5.10.1994 withdrew from
her the drawing and disbursing power. Respondent No.3
challenged the said order by means of a Writ petition before
the High Court which was dismissed.
In the meantime certain more irregularities committed
by respondent No.3 came to light with the result the State
Government by an order dated 11.2.1997 attached her with the
Directorate of School Education, Kashmir, and posted the
appellant as Chief Education Officer, Pulwama in his own pay
and grade. Consequent upon the said order, the appellant
assumed charge and started functioning as Chief Education
officer, Pulwama. As soon as respondent No.3 learnt that
Government is joint to transfer her and post the appellant
in her place, she filed another writ petition (SWP No.
216/97 ) before the High Court and obtained an interim order
dated 4.2.1997 directing the State Government to allow her
to continue as Chief Education Officer, Pulwama, till the
said post is filled up by the Department in accordance with
the rules. Aggrieved by the said order the appellant filed
an appeal (LPA (SW) 106/97] against the grant of interim
order. A Division Bench of the High Court by its order dated
12.31997 stayed the operation of the interim order passed by
the learned Single Judge. Subsequently, upon an application
filed by respondent No. 3, the High Court by its order dated
22.4.97, after vacating the said interim order has directed
the Government not to post the appellant as Chief Education
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officer. That is how this appeal has come up before this
Court.
A perusal of record shows that there were serious
charges against respondent No.3 and her continuance on the
post of Chief Education officer was found detrimental to the
public interest and, as such, the Government attached her
with the Directorate of School Education, Kashmir pending
inquiry against her and the appellant, who was then working
as Deputy chief Education officer, was posted as Chief
Education Officer. This was by way of administrative
arrangement. Otherwise also, the appellant being next in the
order of seniority was entitled to be posted as Chief
Education officer. On the other hand, respondent No.3 was
transferred to Directorate in her own pay and grade and she
was not put to any financial loss and her stay in the
Directorate was till completion of inquiry against her.
Under such circumstances, the High Court was not justified
in directing the government not to post the appellant as
Chief Education Officer. While passing the impugned order,
the High Court did not consider whether prima facie the
appellant is entitled to be post as Chief Education Officer
Keeping in view the principle of seniority-cum-suitability.
In fact, the principles governing the grant of interim order
were not kept in regard by the High Court while directing
that the appellant be not appointed to the post of Chief
Education officer.
Under such circumstances, we are of the opinion that
the impugned order deserves to be quashed. Consequently, the
order dated 22.4.1997 passed in LPA No.. 106/97 is set aside
and the appeal is allowed. However, there shall be no order
as to costs.