The Rule 8(2) of the J&K Special Recruitment Rules cannot be construed in such a way so as to run contrary to the provisions of Rule 27 of the Jammu and Kashmir Civil Services: The High Court of Jammu & Kashmir and Ladakh
The Government transfer an employee from one place to other in the erstwhile State of Jammu and Kashmir (now Union Territory) on the post born on his/her cadre and that same has to be necessarily interpreted harmoniously with the mandate of Rule 27 of the Rules of 1956.In the Hon’ble High Court of Jammu & Kashmir and Ladakh through the division-bench led by Justice Sanjay Dhar & Ali Mohammad Magrey in the matters of Rajesh Kumar & Ors. v. Government of JK & Ors [CM/1152/2020].
The facts of the case are that in the year 2018, came to be appointed as Constables in the Respondent Department after their successful participation in the selection process initiated by the Respondent Department in terms of Advertisement Notice. It is stated that the appointment of the Appellants, as such, was to be governed by the provisions of SRO 202, namely, the Jammu and Kashmir Special Recruitment Rules, 2015 (“the Rules of 2015”).
The counsel for the applicants submitted that the Respondents issued Order dated 6th of December, 2020. in which the Appellants were appointed and working were shifted to District Srinagar. Being aggrieved thereby, the Appellants challenged the aforesaid Order of transfer dated 6th of December, 2020 before the Writ Court mainly on the ground that as they have been appointed under the Rules of 2015, they cannot be transferred during the period of probation which, in the case of employees appointed under SRO 202, is five years. It was urged on behalf of the Appellants before the Writ Court that Rule 8(2) of the Rules of 2015 clearly provided that an appointee under these Rules shall have to necessarily work for a period of five years on the post against which he/ she has been appointed and that such an appointee shall not be eligible for transfer for whatsoever reason during the temporary service of five years.
The court concluded “It must be said here that the aforesaid Rules of 2015 have already undergone certain amendments in the shape of various Statutory Orders (SOs) issued by the competent authority/ Government and, in terms of SO 194 of 2020 dated 17th of June, 2020, the earlier prescribed period of five years of probation in relation to an appointee under these Rules stands substituted with the period of two years only. In the light of this subsequent development, the Appellants/ Writ Petitioners, who were appointed as Constables in the Respondent Department in June 2018, would have already completed their probation period of two years when the impugned transfer Order was issued in December 2020. Given this position, the main contention of the Appellants/ Writ Petitioners that they could not have been transferred during their probation period does not hold water any further. ”
The court dismissed the petition.