CAT puts order on hold, says search for justice a fundamental right

Srinagar, Nov 15: The Central Administrative Tribunal (CAT) in Srinagar has held that the right of an employee to approach the court in search of justice is a fundamental right safeguarded by the Constitution even as it put on hold the transfer of a teacher in Kargil.

A division bench comprising M S Latif, Member (J), and Prasant Kumar said this while dealing with a plea by a teacher Khatija Begum Salihi who has been transferred from Government High School Poyen, Kargil.

Salihi through her counsel S F Bandey has petitioned the court against her transfer order dated November 1, 2024, along with the related relieving order dated November 2, 2024.

She challenged her transfer primarily with the contention that the order was punitive and issued with malafide intent as she along with other teachers, had previously filed a petition bearing OA No 694/2024, before the tribunal in response to which a detailed order was passed on October 22.

Salihi’s counsel submitted that the issuance of the transfer order is a direct consequence of the petitioner approaching the court.

Furthermore, he submits that the show cause notice issued by the headmaster on November 1, 2024, underscores its retaliatory nature.

The counsel pointed out that the show cause notice issued on November 1, 2024, allowed the petitioner only two days to respond and issued the transfer order on the very same day, thereby violating the fundamental principle of fairness and failing to provide the petitioner with a reasonable opportunity to present his case.

“Upon reviewing the show cause notice dated November 1, 2024, issued by the Headmaster of Government High School Poyen, it is evident that the notice was issued due to the petitioner being one of the applicants in a previous writ petition. Such actions may warrant judicial review to determine if the transfer order is unjust or discriminatory, and whether it was made for legitimate administrative reasons or improper motives,” the tribunal said.

“The act of retaliating against someone who seeks legal redress, especially through a transfer order or show cause notice, can undermine not only the trust of the individual involved but also the public's faith in the judicial system,” the tribunal said. “The courts must protect the rights of individuals and ensure that no one is subjected to vindictive actions for seeking justice.”

It said: “The right of an employee to approach the court in search of justice is indeed a fundamental and treasured right, safeguarded by the constitution. The right of an employee to approach the Court in search of justice is indeed a fundamental and treasured right, safeguarded by the Constitution. The act of retaliating against someone who seeks legal redress, especially through a transfer order or show cause notice, can undermine not only the trust of the individual involved but also the public's faith in the judicial system.”

While the court held that in light of the submissions made in the petition, a prima facie case for indulgence was made out, it said: “Accordingly, subject to objections from the opposing side and the next hearing, the impugned orders shall not be implemented and the petitioner is permitted to continue her position at Government High School Poyen, Kargil. While transfers are a matter of service exigency and typically left to the employer's discretion, courts can exercise judicial review when a transfer order seems to be in violation of fairness, natural justice, or public interest.”

After hearing the parties, the court issued notice on the plea which was accepted by Tahir Majid Shamsi, DSGI and he was granted four weeks' time to file his response.

“Before parting, we believe, it is our duty to emphasise the importance of upholding the rule of law. The Kargil administration of Ladakh and Ladakh Autonomous Hill Development Council, Kargil, should sensitise its officials about employees’ rights to seek justice,” the court said. “Observations made in the show cause notice, which discourage employees from pursuing legal action, hinder the course of justice. Preventing an employee from seeking redressal through legal channels would amount to a violation of their fundamental rights.”

It listed the matter for further hearing on December 12.

Meanwhile, the court directed its Registry to send a copy of this order to the Chief Executive Councilor, Ladakh Autonomous Hill Development Council, Kargil, the Deputy Commissioner, Kargil, the Director School Education of Ladakh, and the Law Secretary of Ladakh.