Excelsior Correspondent
Srinagar, Mar12: The Division Bench of the High Court modified the order of writ court whereby appointment by way of transfer was ordered, citing that it is the domain of administration as to in what manner post is to be filled.
The Division Bench of Chief Justice N Kotiswar Singh and Justice Wasim Sadiq Nargal while dealing with an appeal filed by the Government against the order of writ court said, primarily it is the domain of the executive to see in what capacity or manner a particular post is to be filled up or utilized and modified the order of writ court whereby appointment by transfer was ordered in the year 2015.
The bench said that a peculiar problem has arisen in this appeal as the court is dealing with the appointment that was accorded in December, 1999 in respect of one P Kor, as an Assistant Housekeeper in Hospitality and Protocol Department, to which the writ petitioner-Nazir Ahmad Ganaie, was also an aspirant.
The writ court in its order dated October 9, 2015 took into account that the appointment of P Kor had been continued undisturbed for almost 16 years, consequently declined to interfere with her appointment at the instance of Ganie.
The writ court had directed the present Government to appoint the petitioner-Ganie by way of transfer in the Hospitality and Protocol Department on the post for which he possesses the requisite qualification.
The DB viewed that such direction for appointment by way of transfer may not be in conformity with the rules, inasmuch as, if there is any post in the Hospitality and Protocol Department, it should typically be filled in terms of the prescribed rules as such the writ court could not have issued any such direction unless there is a provision in the service rules for appointment to such post by way of transfer.
“While we can understand the invocation of principle of equity to protect the services of a person who has served for a significant long period of time, even if the initial appointment may not be valid in terms of the statutory rules, we however, are unable to accept the second direction issued by the Single Judge to appoint the respondent -Ganie by way of transfer,” DB said,
“Under the circumstance, we modify the order dated 09.10.2015 passed by the Single Judge only to the extent qua the present respondent No. 1 (N A Ganie) that as and when there is any vacant post in the Hospitality and Protocol Department to which the petitioner is also eligible to be appointed”, Court said.
“We have modified this order keeping in mind that it is primarily in the domain of the executive to see in what capacity or manner the post is to be filled up or utilized and if any such direction by the Writ Court dehors the rules, the same may not be permissible in law”, reads the order.
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