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2000 DIGILAW 136 (JK)

J. B. Singh v. State

2000-07-10

T.S.DOABIA

body2000
1. Petitioner is working with Integrated Watershed Development Project. His parent department is the Forest department. He has been recalled by the Forest Department and respondent No. 5 has been deputed to perform the duties which the petitioner was performing with the Integrated Watershed Development Project (IWDP). This order is being challenged on the following grounds: i) that as per the terms and conditions laid down by the World Bank, a person must continue with the Project; ii) that the minimum period for which a person is to be kept in the project is not less than three years, and therefore, the order of recall is bad; iii) that in case of premature recall/transfer of a Gazetted Officer, the order has necessarily to be passed with the prior approval of the Chief Minister of the State and file is to be routed through the Chief Secretary. 2. M.K. Bhardwaj, learned counsel for the respondent No. 5 submits that he has since joined on 3rd of July, 2000. 3. The question as to whether a transfer made in breach of some conditions which have been imposed by the World Bank is permissible or not be examined at the first stage. 4. It be seen that the conditions which have been imposed by the World Bank cannot be treated as the conditions of service. If some conditions have been violated then it is for the World Bank to take action against the concerned authorities. 5. The terms and conditions on which World Bank has given assistance cannot be treated as terms and conditions regulating the service conditions of employees. In this regard, reference is being made to a decision given by the Calcutta High Court in Sarafatualla Sarkar Vs. Surjit Kumar Mondil AIR 1955 Cal. 382. The service Rules provided that an employee shall not contest election. He contested the election. The question arose as to whether the nomination of such a candidate under the Election Laws was valid or not. It was observed that if somebody contests election in breach of the service Rules, then the Government can take action against him under the conduct Rules, but his nomination under the Election Rules is not bad. The same view was expressed in a Full Bench of Punjab and Haryana High Court in Uttam Singh Vs. Kirpal AIR 1976 P&H 176. It was observed that if somebody contests election in breach of the service Rules, then the Government can take action against him under the conduct Rules, but his nomination under the Election Rules is not bad. The same view was expressed in a Full Bench of Punjab and Haryana High Court in Uttam Singh Vs. Kirpal AIR 1976 P&H 176. The Regulations of Life Insurance Corporation laid down that an employee of the Corporation shall not contest Election. This was held to be not a disqualification for the purposes Article 191 of Constitution of India. From the aforementioned two decisions it can be spelt out that the service Regulations stand at a different pedestal. If there is breach of the same, then action has to be taken by the employer. In the present case, the position is reverse. If some condition imposed by the World Bank has not been observed, then it is for the World Bank to act and take such steps as may be advised. The conditions in the control can by no logic be put at part with service conditions. Thus petitioner cannot seek benefit of the terms and conditions of the contract entered into between the World Bank and the State. 6. So far as the policy decisions taken by the State Government dealing with the transfer matters are concerned, these are again not justifiable. It has been consistently observed that the transfer in a Government service is an ordinary concomitant and incident of service, an employee who is appointed in a particular cadre or transferable posts his transfer from one place to another is an ordinary incident of service and it does not result in alteration of any conditions of service to his disadvantage. The transfer is a normal feature in service and no one has a right to remain at a particular post or for a particular period. The norms or the policy is for the guidance of the officers authorised to effect and regulate the transfer. Immunity against transfers would amount to gagging the right of the administration to a administer and right of the employees to get work at the time and place of his choice and according to the administrative exigencies of the employer which he wants to meet. The above observation find support from a decision ; of Supreme Court of India reported as R. Baradha Rao Vs. The above observation find support from a decision ; of Supreme Court of India reported as R. Baradha Rao Vs. State of Karnataka and others, (1980)4 SCC 133. This view was again followed in Union of India Vs. S.L. Abbas., (1993) 4 SCC 357 and was observed that Courts are not to interfere unless and until the order of transfer is vitiated by malafide consideration. 7. It is true that transfer causes lot of difficulties and dislocation in the family set up of the concerned employee, but this cannot be made a ground to interfere with an order of transfer. Interference can be made only if it is shown that the order of transfer has been made for an oblique purpose or for weelking veneance against an employee, Rajindra Rao Vs. Union of India, JT (1992) 6 SC 732. 8. A transfer which is an incidence of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any professed norm or principle governing the transfer. Shri Abani Kanta Ray Vs. State of Orissa (1995) 7 JT 167: 1996(1) SCT 22. In this regard reference may also be made to another decision reported as N.K. Singh Vs. Union of India (1994) 6 SCC 98: 1995 (1) SCT 269, wherein similar observations were made. 9. The question of hardship is something to which administrative authorities are to address themselves. It is for them to mitigate hardship in interest of good and efficient administration. The Courts are, however, not expected to interdict the working of administrative system by transfer of officers to proper places. State of M.P. Vs. S.S. Kourav, JT (1995) 2 SC 198. 10. In view of the above, it cannot be said that any legal vested right of the petitioner has been taken away. With regard to policy matters in Bank of India Vs. Jagit Singh Metha (1992) 1 SCT 161 (SC) it was held: No doubt the guidelines require the two spouses to be posted at one place as for as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authority do not consider it reasonable. Jagit Singh Metha (1992) 1 SCT 161 (SC) it was held: No doubt the guidelines require the two spouses to be posted at one place as for as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authority do not consider it reasonable. The only thing required is that the departmental authorities should consider this aspect alongwith the exigencies or administration and enable the two spouses to live together at one station. If it is possible without detriment to the administrative needs and the claim of other employees.� As such the policy decision cannot be enforced in writ jurisdiction. Again new incumbent No. 5 has already joined. As such no relief can be granted. However, the respondent-authorities may examine the plea put across by the petitioner and pass such order as may be deemed proper. However, no writ can be issued. Disposed of with the observations made above.