SRINAGAR, Dec 30: The High Court today stayed the transfer of cops who were on probation for a period of 5 years and said that the order is in violation of rules.
Inspector General of Police Kashmir, Muneer Khan, issued transfer orders of hundreds of constables in Police Department for which he is not competent under SRO 202.
Justice Ali Mohammad Magrey after hearing Counsel representing the aggrieved cops, Advocate Syed Musaib, stayed the orders passed by Khan. “…In the meantime subject to objections from the other side and till next date of hearing the operation of the impugned order dated 6.12.17 and 22.12.17 shall stay”, Justice Magrey directed.
Court also sought reply in this connection from Secretary to Home Department, Director General of Police, Inspector General of Police and Senior Superintendent of Police Kupwara. 419 constables were transferred by virtue of new order amongst them serial number 1-40 constables are from Anantnag, 41-58 from Awantipora, 59-118 Baramulla , 119-133- Budgam, 134-165-Handwara, 166-205 Kulgam, 206-243 Pulwama, 244-299 Shopian, 300- 349 Sopore, 350-404 Srinagar and 405-419 from Ganderbal.
Court said the issue raised with reference to competence of the IGP to transfer the petitioners is not in tune with the rules notified in terms of SRO 202 of 30.6.15, wherein it is provided that the appointees shall be initially on probation for period of five years.
“After completion of 5 years and during this period he/they shall have to necessarily work for a period of five years on the post against which he/they have been appointed and such appointees shall not be eligible for transfer for whatsoever reason during the temporary service of five years.
Earlier when the petitioners were transferred by IGP Kashmir on 16.10.17 and the Court on consideration of the matter in terms of the order dated 21.11.17 stayed the transfer order to the extent of petitioners in that petition.
Despite the stay order in force IGP again on December 16 passed an order transferring the petitioner from Kupwara to various other districts to disentitle the petitioners of the benefit of the order passed by the Court.
Petitioners submitted that in terms of SRO 202, the petitioners could not have been transferred without completing at least five year of service in terms of rule 8 of SRO 202.
Advocate Musaib while challenging the order stated that it is an arbitrary and illegal order, wherein in the petitioners have been adjusted/transferred to the new place of posting/District despite the fact that petitioners have been appointed in accordance with the provisions J&K Special Recruitment Rules, 2015 notified vide SRO 202 dated 30.06.2015.
He as per the said provision of SRO, submitted before the Court that the petitioners are choked of the essential annual increments, Dearness Allowance, House Rent Allowance and City Compensatory Allowance for the period five years of their continuous service, in return the nature of appointment ensures that for period of initial five years the services of the appointees are non-transferable under Section (8) of the said SRO.
“…The appointee shall have to necessarily work for a period of five years on the post against which he has been appointed and such appointee shall not be eligible for transfer for whatsoever reason during the temporary service of five years”, Section 8 of SRO 202 read.
He submitted before the Court that the impugned order has been passed against the statutory provision and as such is bad in law and deserves to be quashed.
These Constable Posts were advertised vide advertisement notice No. Pers/A/ 117/ 2015/ 47322-422, dated 25.08.2015 issued by then Director General of Police for various districts in-accordance with the employment condition as prescribed by the J&K Special Recruitment Rules, 2015 notified vide SRO 202 dated 30.06.2015.
The contention of the petitioners is that they are the appointees under the employment conditions as prescribed by the SRO-202 of 2015, dated 30.06.2015, the nature of appointment as prescribed under the said SRO, ensures that for period of initial five years the services of the appointees are non-transferable under section 8 of SRO.
Citing the Supreme Court on the issue, Counsel submitted that the law governing the subjects of transfer it is by now well settled and often reiterated that any government servant or employee cannot be transferred in violation of statutory provisions prohibiting any such transfer.
The impugned order has been passed against the statutory provision and as such is bad in law and deserves to be quashed same is being challenged by the petitioners on the grounds available to them under law.
Petitioners seek quashing and setting aside Order No. 1131 of 2017, dated 06.12.2017 and Order No Estt/Tfr-Rel/2017-40336-41, dated 22-12-2017 and Order No: Estt/Tfr-Rel/2017-397 passed by IGP and SSP Kupwara.