Sultan Ganai Vs. State of Jammu & Kashmir & Ors  INSC 278 (5 May 1998)
Bharucha, V.N. Khare V.N. Khare, J.
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.
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.
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
officer. That is how this appeal has come up before this Court.
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.
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.
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.
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