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PETITIONER: MOHD. SULTAN GANAI

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS.

DATE OF JUDGMENT:       05/05/1998

BENCH: S.P. BHARUCHA, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T V.N. KHARE, J.      Leave granted.      Heard counsel for the parties . This appeal is directed against the  order dated  22.4.1997 passed by the High Court of Jammu & Kashmir in LPA No. 106/97, whereby the High Court has, after  modifying  the  order  dated  12th  March  1997, directed the  Director, School  Education,  respondent  No.2 herein, to  post an  officer other  than the  appellant,  as Chief Education Officer, Pulwama.      In the  year 1994, respondent No.3, Syed Zuhara Jabeen, was posted  as Chief  Education officer,  Pulwama, When  the State Government,  on the  allegations  that  she  committed number of  irregularities, mal-practices and misappropriated Government funds,  by an order dated 5.10.1994 withdrew from her  the  drawing  and  disbursing  power.  Respondent  No.3 challenged the said order by means of a Writ petition before the High Court which was dismissed.      In the  meantime certain  more irregularities committed by respondent  No.3 came  to light with the result the State Government by an order dated 11.2.1997 attached her with the Directorate of  School Education,  Kashmir, and  posted  the appellant as Chief Education Officer, Pulwama in his own pay and grade.  Consequent upon  the said  order, the  appellant assumed charge  and started  functioning as  Chief Education officer, Pulwama.  As soon  as respondent  No.3 learnt  that Government is  joint to  transfer her and post the appellant in her  place, she  filed another  writ  petition  (SWP  No. 216/97 ) before the High Court and obtained an interim order dated 4.2.1997  directing the  State Government to allow her to continue  as Chief  Education Officer,  Pulwama, till the said post  is filled up by the Department in accordance with the rules.  Aggrieved by  the said order the appellant filed an appeal  (LPA (SW)  106/97] against  the grant  of interim order. A Division Bench of the High Court by its order dated 12.31997 stayed the operation of the interim order passed by the learned  Single Judge. Subsequently, upon an application filed by respondent No. 3, the High Court by its order dated 22.4.97, after  vacating the said interim order has directed the Government  not to post the appellant as Chief Education

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officer. That  is how  this appeal  has come  up before this Court.      A perusal  of record  shows  that  there  were  serious charges against  respondent No.3  and her continuance on the post of Chief Education officer was found detrimental to the public interest  and, as  such, the  Government attached her with the  Directorate of  School Education,  Kashmir pending inquiry against  her and the appellant, who was then working as Deputy  chief Education  officer,  was  posted  as  Chief Education  Officer.   This  was  by  way  of  administrative arrangement. Otherwise also, the appellant being next in the order of  seniority was  entitled  to  be  posted  as  Chief Education officer.  On the  other hand,  respondent No.3 was transferred to  Directorate in her own pay and grade and she was not  put to  any financial  loss and  her  stay  in  the Directorate was  till completion  of  inquiry  against  her. Under such  circumstances, the  High Court was not justified in directing  the government  not to  post the  appellant as Chief Education  Officer. While  passing the impugned order, the High  Court did  not consider  whether prima  facie  the appellant is  entitled to be post as Chief Education Officer Keeping in  view the principle of seniority-cum-suitability. In fact, the principles governing the grant of interim order were not  kept in  regard by  the High Court while directing that the  appellant be  not appointed  to the  post of Chief Education officer.      Under such  circumstances, we  are of  the opinion that the impugned order deserves to be quashed. Consequently, the order dated 22.4.1997 passed in LPA No.. 106/97 is set aside and the  appeal is allowed. However, there shall be no order as to costs.