Zahid Aslam Moghal vs FOREST ENVIRONMENT AND ECOLOGY DEPARTMENT on 31 December 2024

ORDER

1. Through the medium of aforesaid O.A the applicant approached this Tribunal for seeking following relief: -

a. Set aside impugned Government Order No.318-JK (FST) of 2024 dated 26.12.2024 issued by the respondent whereby the claim of applicant has been illegally and arbitrarily rejected.

b. Direct the respondent to allow the applicant to serve at his previous place of posting as I/c Regional Director, Social Forestry, Kashmir with additional charge of the post of Joint Director, Soil and Water Conservation, Kashmir.

2. Before adverting to grounds taken in the O.A and arguments of learned counsels, it is apt to give brief resume of the case: -

i) After serving almost 05 years in Kupwara as Divisional Forest Officer, the applicant vide Govt. Order No.31-JK (FST) of 2024 dated 31.01.2024 came to be transferred and posted as I/c Regional Director, Social Forestry, Kashmir.

ii) Vide another Govt. Order bearing No.36-JK (FST) of 2024 dated 10.02.2024 an additional charge of the post of Joint Director, Soil and Water Conservation, Kashmir has been assigned to the applicant.

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iii) Vide Govt. Order No.172-JK (FST) of 2024 dated 16.08.2024 the applicant has been transferred and posted as Regional Director, Ecology, Environment and Remote Sensing, Jammu.

iv) The applicant submitted a representation to the Department seeking modification of aforesaid transfer order dated 16.08.2024 on humanitarian grounds. It is stated in the representation that wife of the applicant is also a Govt. Servant and posted in District Srinagar. During the year 2023, the wife of the applicant had highly complicated pregnancy and in extreme emergent situation she gave birth to premature twin babies at the age of 6½ months and both weighing 900 grams each. Both the kids and wife of applicant remained admitted in ICU for days together and even after discharge from the Hospital both the babies needed extreme care and were being kept isolated at Home and taken outside only when required for medical examination. At home also they are kept in a separate room to protect them from the outside contaminated environment as they are prone to infections. All the things are being managed by the applicant in Srinagar only and it would be very difficult for his spouse to take care of kids alone at Srinagar without him. The applicant has also another baby of 03 years.

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v) The inaction on the part of respondent constrained the applicant to approach this Tribunal through the medium of Original Application bearing O.A No.61/891/2024 titled Zahid Aslam Moghal, V/s Union Territory of J&K & Ors. The said O.A was filed on following amongst other grounds: -

a. The said transfer order is premature and against the Transfer Policy issued by the Government vide Govt. Order No.861-GAD of 2010 dated 28.07.2010.

b. The wife of applicant is also in Govt. Service and posted in the office of Divisional Commissioner, Kashmir as Senior Assistant. They have a minor child of three years old and the wife of applicant gave birth to twin babies in highly complicated pregnancy and both the babies are at the age of 6½ months and underweight around 900 grams each. The Doctors have advised to take extreme care and to keep them isolated at Home and take outside only when required for medical examination. The twin babies are very fragile and it will be very difficult for the new born to get adjusted in the new environment at new place in Jammu.

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c. Nobody is posted against the applicant as Regional Director, Social Forestry, Kashmir with additional charge of the post of Joint Director, Soil and Water Conservation, Kashmir but the charge of aforesaid posts has been directed to be manned by giving additional charge to Sh. Irfan Rasool Wani, IFS who has been transferred and substantively posted as Chief Conservator of Forest, Kashmir vide the same order dated 16.08.2024 in which his name figured at S.No.7 of the list. Thus if the applicant will be allowed to serve in his previous place of posting, nobody will be dislodged.

vi) That the matter came for consideration before this Tribunal and after considering the matter the said O.A was disposed of vide order dated 21.08.2024 with direction to the respondents to treat the O.A as representation of the applicant and consider the case of the applicant sympathetically in view of the averments made in the petition and decide the same by passing a reasoned and speaking order within a period of two weeks and till then the respondent was directed to allow the

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applicant to serve at his previous place of posting and no coercive action should be taken against the applicant.

vii) Vide order impugned bearing Govt. Order No.318-JK (FST) of 2024 dated 26.12.2024 the claim of applicant has been found devoid of merit as such has been rejected.

viii) Aggrieved of order impugned dated 26.12.2024, the applicant assailed the aforesaid order dated 26.12.2024 before this Hon’ble Tribunal through the medium of instant O.A.

3. Heard the learned counsels appearing for the parties and perused the record minutely.

4. The learned counsel for the applicant Mr. Faheem Shokat Butt submits that the order impugned dated 26.12.2024 is not passed in consonance with the earlier directions passed by this Tribunal in O.A No.61/891/2024 and the respondent has not considered the material facts as mentioned in O.A No.61/891/2024 and relied upon only that portion of O.A which suits them and deliberately ignored the other aspects, thus it cannot be said to be a consideration order in view of law laid down by Hon’ble Supreme Court in case titled Barium Chemicals Ltd. & Anr. Vs.

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A.J Rana & Ors., 1972 (1) SCC 240 and Chairman, LIC of India & Ors Vs. A. Masilamani, 2013 (6) SCC 530.

5. The learned counsel argued that the order impugned though has been passed on 26.12.2024 by the respondent No.1 but the same has been forwarded to applicant by APCCF/Director, Department of Social Forestry, J&K vide endorsement No.DIR/DSF/Estt/1743 -44 dated 30.12.2024 and the sole purpose for informing the applicant about the order impugned belatedly is apparently to prevent him to approach the Hon’ble Tribunal which is scheduled to have winter vacations from 31.12.2024 onwards. It is further submitted that vide order dated 21.08.2024 the Tribunal directed the respondent to decide the claim of applicant within a period of two weeks but the order impugned has been passed after more than 4½ months which goes to show that the case of applicant was apparently genuine and that’s why he was allowed to serve in his previous place of posting for long four and half months.

6. Coming to the reasons assigned in order impugned for rejecting the case of the applicant, it is submitted that one of the reason given in the order impugned is that the transfer of applicant has become necessitated due to reason that some officers

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represented before the Department regarding their transfer on the ground of life consuming diseases faced by their family member(s) and while analyzing their grievances and genuine problems faced by them, they were considered for relocation from their postings. It is submitted by the learned counsel of the applicant that this reason is totally misconceived as till date nobody has been substantively posted as Regional Director, Social Forestry, Kashmir and Joint Director, Soil & Water Conservation, Kashmir. The learned counsel invited our attention to Govt. Order No.172-JK (FST) of 2024 dated 16.08.2024 (Annexure-A4 to the O.A) to demonstrate that the additional charge of aforesaid post has been given to one Mr. Irfan Rasool Wani (IFS) who has been transferred and posted as Chief Conservator of Forests, Kashmir and till date nobody has been transferred and posted against the aforesaid two posts. Thus the reason for rejecting the claim of applicant is misplaced. Otherwise also there is only evasive statement in the order impugned without any detail about the posting of such officials against any post on the basis of Life Consuming Disease and anyway the posts against which the applicant was working has not been filled by appointing anybody, as such the reason is vague.

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7. That learned counsel further stated in the order impugned the respondent has given another reason that the health factor of officer was also considered and in view of the fact that he is domicile of District Doda as per his service record, he can avail the medical facilities at Jammu Headquarters. It is submitted that by giving this reason the respondent showed his total non- application of mind to the facts of the case as it is not the applicant whose health factor was in question but he specifically pleaded the health condition of his newly born twin babies which has not been considered by the respondent while rejecting the claim of applicant.

8. Another reason for rejecting the claim of applicant is that the post of Regional Director, Social Forestry, Kashmir is an IFS cadre post and, as such, the officer has no claim on it either and has now been assigned to an officer of IFS rank. To rebut this contention the learned counsel submitted that the said post of Regional Director, Social Forestry, Kashmir is being manned in past also by non IFS officers who are even confirmed DCF. The reliance has been placed upon Govt. Order No.187-FST of 2019 dated 21.06.2019 (Annexure-A9) which reveals that one Sh. Mehraj-ud-Din Malik I/c DCF has been posted as Regional Director, Social Forestry Department, Kashmir and he hold the

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said post from 21.06.2019 to 16.08.2024 which is evident from perusing Govt. Order No.172-JK (FST) of 2024 dated 16.08.2024 (Annexure-A4 to the O.A) wherein his name figured at S.No.17 of the list.

9. While summing up his arguments, the learned counsel for the applicant also invited our attention to report dated 13.12.2024 (Annexure-A7) to demonstrate that the order impugned has been passed on the basis of legal malice. It is stated that by virtue of aforesaid report dated 13.12.2024 sent to PCCF/Director, Department of Social Forestry, J&K, the applicant has highlighted some grave embezzlement of public ex-chequer in Social Forestry Division, Pulwama and recommended Regular Departmental Inquiry against the erring officials. The learned counsel further submits that since the case of applicant was genuine as such after passing of order dated 21.08.2024 by this Tribunal in O.A No.891/2024 the applicant was not disturbed for 4½ months and suddenly after submitting the aforesaid report dated 13.12.2024 the order impugned has been passed by the outgoing Administrative Secretary of the Department who was transferred on the next day vide Govt. Order No.2178-JK (GAD) of 2024 dated 27.12.2024.

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10. Per-contra the learned counsel appearing for respondent vehemently denied the contention of the applicant and reiterated the contents of order impugned dated 26.12.2024 in order to justify the rejection of claim of applicant.

11. There is substance in the arguments advanced by learned counsel for the applicant. The order impugned seems to be passed in mechanical manner without due application of mind. The reasons assigned for rejecting the genuine case of applicant is not in consonance with the directions of this Tribunal passed vide order dated 21.08.2024 in O.A No.891/2024 in which the respondents were directed to treat the contents of O.A as representation and pass a speaking order. The contents of O.A have not been considered in its entirety. The medical issue of infants of applicant is not at all considered while passing the order impugned and the impression has been given in the order impugned that they have considered the health condition of applicant which was not an issue at all. It is also not considered that the wife of applicant is posted as Senior Assistant in the office of Divisional Commissioner, Kashmir and in absence of applicant it is very tough for her to manage three infants and particularly in the situation when the two babies of applicant who were prematurely born and have medical complications

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and require constant and extreme care. Though transfer of a Govt. Employee is an exigency of service and nobody can claim posting of his/her choice but being a welfare State it is a duty of an employer to be alive to the genuine grievances of its employees. We also noted that the applicant has been prematurely transferred within a span of six months and the posts of Regional Director, Social Forestry Kashmir and Joint Director, Soil & Water Conservation, Kashmir has been assigned to one of the senior most officer Mr. Irfan Rasool Wani in addition to his substantive posting as Chief Conservator of Forests, Kashmir and nobody has been given the aforesaid post on substantive basis on the basis of his/her or their dependents’ life consuming disease. On the one hand the respondent is saying that the post of Regional Director, Social Forestry Kashmir is an IFS cadre post and the applicant has no claim on it but the documents on record show that the said post of Regional Director, Social Forestry Kashmir has been given to non IFS official (Incharge DCF) who remained posted as Regional Director, Social Forestry Kashmir w.e.f. 21.06.2019 to 16.08.2024 and whereas the applicant is a confirmed DCF. Even the other post held by the applicant i.e. Joint Director, Soil & Water Conservation, Kashmir is a non IFS post and the applicant is eligible for holding the said post and could have

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adjusted against the said post on substantive basis which he is already holding in addition to his posting as Regional Director, Social Forestry, Kashmir.

12. In our considered view, the order impugned dated 26.12.2024 cannot be construed to be a consideration order in view of principles laid down by Hon’ble Supreme Court in case titled Barium Chemicals Ltd. & Anr. Vs. A.J Rana & Ors., 1972 (1) SCC 240 and Chairman, LIC of India & Ors Vs. A. Masilamani, 2013 (6) SCC 530 because all the relevant contentions made by the applicant in the O.A No.891/2024 has not been considered by the respondent. In Barium Chemicals Ltd. & Anr. Vs. A.J Rana & Ors., 1972 (1) SCC 240 the Hon’ble Supreme Court held that, “ “The words ‘considers it necessary’ postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word ‘consider’ is ‘to view attentively, to survey, examine, inspect (arch), to look attentively, to contemplate mentally, to think over, meditate on, give heed to, take note of, to think deliberately, be think oneself to reflect’ (vide Shorter Oxford Dictionary).

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According to Words & Phrases-Permanent Edn: Vol. 8A to ‘consider’ means to think with care. It is also mentioned that to ‘consider’ is to fix the mind upon with a view to careful examination; to ponder; study; meditate upon, think or reflect with care. It is, therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question is, sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the makings of the order would be held to be non-existent. A necessary corollary of what has been observed above is that mind has to be applied with regard to the necessity to obtain and examine all the documents mentioned in the order. An application of the mind with regard to the necessity to obtain and examine only a few of the many documents mentioned in the order, while there has been no such application of mind in respect of the remaining documents, would not be sufficient compliance with the requirements of the statute. If, however, there has been consideration of the matter regarding the necessity to obtain and examine all the documents and an order is passed thereafter, the Court would

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stay its hand in the matter and would not substitute its own opinion for that of the authority concerned regarding the necessity to obtain the documents in question.”

13. For what has been observed, considered and analyzed herein above and the foregoing reasons, the aforesaid O.A is disposed of with direction to respondents to re-consider the case of applicant afresh by passing a reasoned and speaking order and while passing the consideration order take in view the contents of both the O.As (O.A No.891/2024 & O.A No.1479/2024) and also the observations of this Tribunal referred (supra).

14. Till the matter is re-considered, the applicant is allowed to work on his previous place of posting.

15. Before passing any speaking order, the applicant should also be provided personal hearing and order so passed shall be communicated to applicant. The aforementioned exercise shall be completed with in 6 weeks from the receipt of certified copy of this order.

16. No order as to cost.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)

MEMBER (A)

MEMBER (J)

Pk/