Jammu, Aug 18: While coming heavily on the transfer industry of Engineers in various Departments of J&K Government, Justice Sanjeev Kumar of Jammu Kashmir High Court (Jammu Wing) has forwarded his Judgment highlighting mess in the transfer of Engineers in various Departments to the Chief Secretary of the State for taking appropriate remedial measures in the matter and to take effective steps to streamline the process of transfer and postings of Engineers in various Govt. Departments.
Justice Sanjeev Kumar after considering the submissions of Deputy Advocate General Arshad Majid Malik appearing for Rural Development Department in an approved for reporting Judgment further directed that it is expected that the Chief Secretary would take note of the observations made hereinabove and come up with a rational policy of transfer and posting of the Engineers in various Departments of the State.
These court directions of wide public importance were passed in a writ petition titled Madan Gopal Samyal V/s State of J&K & Ors wherein the petitioner had questioned Govt. Order No.89-PW(R&B) of 2018 dated February, 16, 2018 to the extent the same pertained to the retention of Neeraj Chopra in the Rural Engineering Wing of the Rural Development Department.
After considering the submissions of Advocate Abhinav Sharma appearing for the petitioner whereas Deputy Advocate General Arshad Majid Malik appearing for the RDD and Advocate Nirmal Kotwal appearing for private respondent Neeraj Chopra, Justice Sanjeev Kumar observed that both petitioner and Neeraj Chopra are substantively holding the post of Junior Engineers borne on the cadre of Public Works (R&B) Subordinate Service and are holding the post of Incharge Assistant Engineers (Civil) in their own pay and grade. For quite some time both the petitioner and Neeraj Chopra are serving in the Rural Engineering Wing of the Rural Development Department after their services were placed at the disposal of RDD by their parent department. Justice Sanjeev Kumar further observed, “Though, both are working in the Rural Engineering Wing of the Rural Development Department, and are conveniently posted, yet the dispute between the two appears to be for a posting which both of them perceive as a ‘prize posting’. The present case therefore, depicts a classical example of depleting standards of morality and ethics.
Justice Sanjeev Kumar after scanning the records supplied by State Counsel A.M. Malik expressed his displeasure and observed that the manner in which Neeraj Chopra I/c Assistant Engineer, RDD, Kathua Division has been posted from time to time speaks volume about the unholy nexus between some of the Engineers and the officers in the administrative department concerned. The placement of services of the engineers working in the PWD at the disposal of RDD is totally arbitrary without there being any rational yardstick or guidelines. The J&K Rural Development (Gazetted) Service constituted vide SRO 285 of 2003 does not have a cadre of Assistant Engineers of its own, though the posts of Junior Engineers are borne on the Jammu and Kashmir Rural Development/Sanitation (Subordinate) Service constituted vide SRO 178 of 2007. As per the Jammu and Kashmir Rural Development Subordinate Service Recruitment Rules, the posts of Junior Engineer in the RDD are required to be filled up by the appointment of eligible candidates recommended by J&K Service Selection Board, there is no provision for transfer/deputation of the Junior Engineers from the PWD to the RDD. Justice Sanjeev Kumar noted with concern how the Assistant Engineers from PWD are posted in the REW of the RDD is something which the State Government needs to explain.
At this stage Deputy AG A.M. Malik appearing for Rural Development Department submitted and drew the attention of the Court towards Article 52-C of the J&K CSR which deals with deputation of government servants to non-governmental organizations, including Corporations, Companies, autonomous bodies etc within or outside the State or to the Central Government or other State Government and such deputations were governed by the standard terms and conditions of deputation contained in Schedule-XVIII.
Justice Sanjeev Kumar according to CNS also referred Rule 23 of the J&K Civil Services Decentralization and Recruitment Rules, 2010 dealing with intra and inter-cadre transfers and the court further observed that conjoint reading of Rule 27 of the J&K Civil Services (CCA Rules) 1956 and Rule 23 of the J&K Civil Services Decentralization and Recruitment Rules, 2010 would make it abundantly clear that transfer from one cadre to another and from one service to another is not permissible under any circumstances and viewed, thus, the transfer and posting of the Junior Engineers and Assistant Engineers of PWD to the Department of RDD are in violation of the aforesaid Rules. The Government, therefore, needs to take a serious note of the aforesaid fact and take remedial measures so that the statutory rules are not violated by it or its officers without being accountable.
After threadbare discussion in the matter Justice Sanjeev Kumar noted with concern, “I have no hesitation to hold that the order impugned has been issued to accommodate the respondent No.4 Neeraj Chopra and, therefore, suffers from malice in law”. Justice Sanjeev Kumar also referred paras 5 and 6 of the Supreme Court Judgment rendered in the case of B. Varadha Rao vs State of Karnataka & Ors reported as AIR 1986 SC 1955.
With these observations and directions Justice Sanjeev Kumar quashed Government Order No.89-PW (R&B) of 2018 dated February, 16, 2018 in so far it pertains to the detention of Neeraj Chopra in REW, RDD and also quashed Government Order dated March, 14, 2018 in so far as it pertains to the posting of Neeraj Chopra as Assistant Engineer Stores/Technical Officer to the Executive Engineer, REW, Kathua.
The Court further observed that the State Government is left free to fill up the post of Assistant Engineer Stores/Technical Officer to Executive Engineer, REW, Kathua by posting an appropriate person eligible to hold the post.
Before parting Justice Sanjeev Kumar expressed his serious concern over the transfer industry of Engineers and directed the Registry to send a copy of this order to the Chief Secretary of the State who has been directed for taking appropriate remedial measures in the matter and to take effective steps to streamline the process of transfer and postings of Engineers in various Government Departments. The Court further observed that it is expected that the Chief Secretary would take note of the observations made hereinabove and come up with a rational policy of transfer and posting of the Engineers in various departments of the State.
With these observations and directions Justice Sanjeev Kumar allowed the petition.