mohammad hashim banday vs University of Kashmir on 31 December 2024

1. Mohammad Hashim Banday, Aged 40 years. S/o Ghulam hassan Banday. R/o Assaar Colony Hazratbal Tehsil North District Srinagar. Pin code 190006.

…….Applicant

(By Petitioner : Mr. L A Lateef)

V/s

1. Vice- Chancellor, University of Kashmir at Hazratbal, Srinagar. Pincode 190006.

2. Registrar General Administration, University of Kashmir at Hazratbal Srinagar. Pincode 190006.

3. Assistant Registrar General Administration, University of Kashmir at Hazratbal Srinagar. Pincode 190006.

4. Joint registrar General Administration, University of Kashmir at Hazratbal Srinagar. Pin Code 190006.

5. Provost, Boys Hostel, University of Kashmir at Hazratbal Srinagar. Pincode 190006.

6. Director, South Campus Anantnag. Pincode 192102.

…………Respondents

(By Advocate: Mr. Asif Maqbool through virtual mode)

ORDER(ORAL) Per.: M.S. Latif, Member(J)

1. Through the medium of the instant petition the petitioner seeks for the following reliefs which are reproduced as under- (a). Original application may kindly be allowed.

(b) . Issue Direction for setting aside the transfer order bearing No. F(Transfer-Helper)GA/KU/24 dated 29.11.2024, which is punitive in nature. Further respondents be directed not to harass the applicant to perform his duties in the main Campus, where he was initially appointed as Helper.

(c) . Pass any other order or direction, which this Hon’ble Tribunal may deem fit and proper also issued in favour of applicant.

2. Alongside the main reliefs the petitioner has also sought for the interim relief which are also reproduced as under- That in view of the facts and circumstances illustrated in the proceedings paragraphs, the applicant humbly prays that this Hon’ble Tribunal may kindly be pleased to stay the operation and implementation of impugned order bearing No.F(Transfer-Helper)GA/KU/24 dated 29.11.2024. Till disposal of the present O.A. respondents be restrained not to harass the applicant till the instant O.A. is disposed of.

3. The facts as the stem out of the pleadings of the O.A. are that the petitioner in pursuance to an order dated June, 16 2017 was designated as a “Helper”, who figures at sr.no.21 of the order and was ordered to be posted in the Department of Statistics.

4. The petitioner while accepting his designation as a helper, the order contains certain terms and conditions in which one of the conditions is in the order is that the petitioner will have to perform the duties as would be assigned to him from time to time, which is not denied by the petitioner.

5. Learned counsel for the petitioner, Mr. L.A. Lateef, submits that prior to the issuance of the order impugned the petitioner, in view of the shortage of man power was directed to perform his duties at Syed Meerak Shah Boys Hostel, Zakura Campus with immediate effect and till further enquiry in his case by the university administration. He further submits that the petitioner was involved in a FIR registered at Police Station, Nigeen, wherein the petitioner has been facilitating in

the conduct of alleged fake examination for the post of Junior Assistant and orderlies in the department of Commerce, University of Kashmir and as a result, the petitioner was placed under suspension. To this effect, he has referred to a communication dated 27.11.2024.

6. Perusal of the communication dated 27.11.2024, reveals that the latest status of the instant case was sought from concerned Police Post through Chief Proctor, and a report of the Station House Officer, Police Station Nigeen, stated that “owing to insufficient evidences/witnesses the investigation in the instant case is not concluded. As such keeping the accused person namely, Hashim Banday S/o Hussaim-ud-Din Banday R/o Banday Lane Hazratbal Srinagar continuously under suspension, is the prerogative of the authorities of the University of Kashmir. Therefore the Police Station communicated their no objection if the accused is reinstated into the service under rules and regulations.

7. This Court at pains to have observed the contents of

para-11, as the continuance of suspension or otherwise could have not been left at the mercy of the investigating agency coupled with the fact that the case was pending investigation, may be the evidence was insufficient. It is always for the Competent Court in terms of the Code of Criminal Procedure to either close a case as not admitted or to order for further investigation. As such, this court expresses its anguish in the way, said order has been issued, which can only be deprecated.

8. Learned counsel for the petitioner submits that the impugned order of transfer is frequent as prior to the issuance of the order impugned the petitioner was posted on 09th of September in this Zakura Campus. Perusal of the 09, September, 2024 reveals that the order was not an order of transfer, however it was an order to only perform his duties at Syed Meerak Shah

Boys Hostel, Zakura Campus, as an inquiry was pending against the petitioner. As such, the order impugned cannot be said to be a frequent order of transfer.

9. Admittedly, Courts have very limited power to interfere in transfer matters, Courts can only intervene where the order has been issued by an incompetent authority, the same is not for the professed purpose or when the order is attached with mala fide. To this effect, I am fortified by judgments delivered by the Apex Court titled in the case of Union of India and Ors vs. H.N. Kirtania 1989 (3) SCC 445 as well as Gujarat Electricity Board v. Atmaram Poshan AIR 1989 SC 1433.

10. Learned counsel for the petitioner submits that the instant order of transfer have neither been passed in the public interest nor in the administrative interest, as such, the order has been passed with malice. To this effect,

law is no more res integra that once a petitioner alleges mala fide, what is required in law is to array the person against whom mala fide are alleged as a party in the proceedings so that no order is passed without hearing the person against whom malafidies are alleged.

11. Learned counsel for the petitioner submits that the petitioner is a class IVth employee, who cannot be compelled to work at a place which is more than 40 Kms from his residence coupled with meager income which the petitioner gets as his salary. In addition, he submits that the mother of the petitioner is ailing and is suffering from various depressive disorders. To this effect he has referred certain medical reports.

12. It is also no more res integra that transfer

is exigency of service once an employee accepts it, he has no right to choose place of posting of his choice, however, an employee has a right to seek consideration from the competent authority, in case, there are circumstances that too compelling, which do not allow an employee to join at the place of his posting. One of the circumstances is the family condition of an employee. Keeping in view of the facts and circumstances, prima facie, it appears that the mother of the petitioner is ailing who is under constant treatment of Dr. Mustaq Ahmad, Chief Consultant, Psychiatry, coupled with the fact that there is nobody to look after her. To this effect, the petitioner has made reference in

para-5.6 i.e. whereby he refers that the mother of the petitioner is suffering from multiple diseases and they are only two members in the family, mother and son and there is no other family member to look after his mother in this old age and cannot live at two different places in these days. The instant averment is supported by a duly sworn affidavit.

13. Ordinarily, Courts was not inclined to interfere in matters of transfer, however, in the peculiar facts and circumstances of the case, coupled with the submissions made by the learned counsel for the petitioner. It is provided as under. That the petitioner will move a detailed representation before the competent authority by projecting all his grievances. On needful being done, the respondents will consider and dispose of the same

within a period of 30 days from the date, copy of the said order is served upon the respondents. Till then, the order impugned dated 29.11.2024, shall not be given any effect to. However, it is made clear that the respondents will positively decide and consider the representation filed by the petitioner within the aforesaid period of 30 days. The petitioner to furnish a copy of the instant O.A. before the respondents which can be treated as representation.

14. Accordingly, the O.A. stands disposed of, along with its connected matters, if any.

(M.S. Latif) Member (J)

/Shubham 31.12.2024./ SHUBHAM SHARMA Digitally signed by SHUBHAM SHARMA Date: 2025.01.06 11:15:23 +05'30'