Decided on October 12,1993

O P Bhaskar Appellant
STATE OF JANDK Respondents


- (1.)IT was by sheer chance that an issue of substantial importance cropped up in this petition i.e. whether an order signed by the Addl. Chief Secretary (Home) can be treated to be an order validly passed by the Govt. and whether the court can go behind such order to find out if it has been, infact, passed by the Government? The matter involves survey and scrutiny of constitutional provisions. Business Rules of the Government and above all decisions of the Supreme Court.
(2.)PETITIONER is a D.I.G. in the Armed Wing of the State Police, Force posted at Jammu. A signal was issued by respondent No: 2 vide CB/PP -I/93/4362 -65 dated July 13, 1993 conveying as under: - "The Government has approved the transfer of Shri Muni Lal Addl. DIG CID as Addl. DIG Armed Police Jammu in place of Shri OP Bhaskar who has been posted as OSD in the CID headquarters. Shri Muni Lal will report at the new place of posting on July 14, 1993 to relieve Shri Bhaskar who will report in the CID HQRS on July 17,1993 under intimation to all concerned".
(3.)PETITIONER challenged this signal broadly on the grounds that respondent No: 2 (Director General of Police) is not competent to transfer him and that order impugned was actuated by malafides.
On consideration, a notice of show -cause was issued to respondents on July 16, 1993 and petitioners transfer to Srinagar was ordered to be stayed for two weeks. Respondents were also required to file their objections within the time prescribed. But instead of filing objections within time, they allegedly installed Muni Lal on the post of DIG prompting petitioner to send a wireless message to respondent No: 1 seeking his intervention and stating, inter -alia, that he could not be transferred by an order of the D.G.P, but only by a valid Government order which had not been received by him. He thereafter filed contempt petition No: 184/1993 on Aug. 20, 1993 alleging defiance of court order dated July 16, 1993 and showing from record of the police control Room that he was functioning as DIG on and after the stay order was passed by the Court. As a result, this court by order dated Sept. 1,1993 restrained respondent NO: 2 from causing any interference in his functioning as DIG Armed Police, Jammu. This order was faithfully complied with by the respondents. It transpired in the meanwhile that they had filed objections to the writ petition supported by an affidavit by respondent No:2, denying that petitioners transfer amenated from any malafide considerations and taking the stand that it had been ordered by the Government and not by respondent No. 2, No order of the Government was attached to the objections or placed on record. Nor was any such order communicated to petitioner. Therefore, it became necessary to direct LC for respondents Mr. RC Gandhi, AAG, to produce a copy of the Government order. He submitted [SIC] on original typed copy of the order signed by Mr. Mehmood Rahman, Addl. Chief Secretary (Home) Jammu and Kashmir Srinagar in compliance which is extracted hereunder - "GOVERNMENT OF JAMMU AND KASHMIR HOME DEPARTMENT. SUBJECT: - TRANSFER/POSTING OF D.I.Gs. Sanction is accorded to the transfer/posting of Shri Muni Lal, Addl. DIG CID as Addl. DIG, JKAP Jammu. Shir OP Bhaskar is transferred and posted as OSD in CID Head quarters. By order of the Government of Jammu and Kashmir,Srinagar SD/ -(M.Rahman) Addl. Chief Secretary (Home) Jammu and Kashmir, Srinagar No : Home -PB -1 -93 Dated : 13 -07 -1993 Copy to the: - 1. Director General of Police, J&K, Srinagar. 2. Addl. D.G. CID J&K Srinagar. 3. Government order file".

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