SHABBIR HUSSAIN SHAH Versus AZAD JAMMU AND KASHMIR GOVERNMENT

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).-- The instant appeal is directed against the Order No. SO/Colleges/4082/88, dated 5-5-1988 passed by the Education Secretariat, by which appellant's right of lien to be reverted back to the Education Department was dispensed with.

2. The relevant facts of the case are that the appellant was originally appointed as Lecturer Statistics in Government Degree College, Muzaffarabad vide Government Order No. 3676-80, dated 19-10-1972 on the recommendation of Public Service Commission. He served in that department till 30-4-1974 when he was transferred from the Education Department to Agriculture Department as Assistant Statistical Officer vide Government Order No. Admin.5108-5115/74, dated 10-4-1974. In the order of transfer it was specifically mentioned that the right of reverting back to his parent Department in respect of the appellant shall remain intact so long as he is not declared permanent against his new assignment in the Agriculture Department. The appellant continued his service in the Agriculture Department for about 13 years till an application was moved by him for his transfer to his parent Department. This application was endorsed by the Deputy Secretary Agriculture Department to Secretary Education Azad Government under No. SOAgri/3379/80/87, dated 29-10-1987 with the remark that since the appellant was not a Graduate of Agriculure, his seniority could not be determined along with other officers of the Agriculture Department and since his lien was subsisting in the Education Department, he should be adjusted in that Department under an intimation to the Agriculture Department. In reply to this communication, the Education Secretary under the impugned order held this view that the right of lien could not survive beyond a period of 5 years and since the appellant had spent a period of 14 years in the Agriculture Department, it was difficult for the department of Education to get him back in the Education Department. As a matter of fact, this letter' of Education Secretariat is the subject-matter of this appeal.

3. The appellant's prayer is that his lien of reverting back to his original department still survives and is intact because it was never terminated by any order of the competent authority. It is submitted by the appellant that the impugned order of Education Secretariat be set aside and he may be reverted back to his parent Department. In alternate he submits that he may be provided proper position in the Agriculture. Department for affording him an opportunity of promotion in that department. He claims that he deserves promotion in the Agriculture Department from the date, the officers junior to him in that department were promoted ignoring his preferential rights of seniority.

4. We have heard the arguments as were addressed at the bar by the learned counsel of each party. It seems essential that the relevant Government Order No. Admin./5108-5115/74, dated 10-4-1974 by which the transfer of the appellant from Education Department to Agriculture Department was ordered by the Government .should' be reproduced below for its appreciation and guidance:--

5. While going through this order, we find that the transfer of appellant from Education Department to Agriculture Department was effected subject to the condition that the lien of the appellant shall not be terminated unless and until his posting in the Agriculture Department is accepted to be permanent in that Department by the respondent Government. It is no doubt true that the appellant continued his service in the Agriculture Department for a fairly long time but it does not mean that his right of reversion to his original department was automatically terminated by that long duration of service in the Agriculture Department. There is no rule of law that lien of an officer is itself terminated with the passage of a period of 3 years or 5 years unless such a period is already stipulated in the order of transfer for the expiry of the lien of the officer in his, parent Department. In the instant case, the lien of the appellant has been ordered to remain intact so long as his service in the Agriculture Department does not become permanent and he is not allotted a proper position in the seniority inter se among the officers of that department. The Agriculture Department vide its letter already referred to has refused to accept the services of the appellant for allotting him proper position in the seniority list of the officers because of the fact that appellant is not a Graduate of Agriculture and as such he held a little chance to get proper position in the seniority list among the officers of Agriculture Department. The contention of the Agriculture Department does carry weight and surely the appellant does not have any bright prospects of service in that department. In view of the fact that the Service Tribunal has a limited jurisdiction, we cannot enforce upon Agriculture Department to provide better chances of promotion to the appellant who is not equipped with necessary qualifications for his promotion to the next higher post in that Department. As against this contention of the Agriculture Department we find that the Education Department's refusal to accept the appellant's services back in that department does not sound well. Since the appellant held a substantive job in the Education Department and his lien still remains intact, he has every right to go back to his department because he has not exercised his option of being transferred to the Agriculture Department. .

6. In the circumstances, we feel well-advised that the refusal of the Education Department is illegal and ultra vires to the principle of natural justice. It shall be noted here that a guaranteed right by a valid Government order cannot be denied to a public servant under all circumstances. Hence, accepting the appeal, the impugned order of Education Secretary is vacated. The appellant shall revert back to the Education Department and his seniority with other officers of his rank in that Department shall be determined in accordance with the rules prevalent.

M.Y.H./81/Sr. A Appeal allowed.