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J&K High Court · body

2000 DIGILAW 220 (JK)

Tabasum Rashid v. State Of J. &K.

2000-10-11

R.C.GANDHI

body2000
1. Petitioner seeks to quash the impugned order No.2336 DESK of 1999 dated 17.12.1999 whereby the transfer order of Mst.Gulfer Akhter, teacher has been cancelled and petitioner has been transferred to District Budgam, in place of Mehra Jabeen, teacher, who was earlier transferred on reciprocal basis, under order No.799 DSEK of 1999 dated: 10.05.1999, from Middle School Drubgam, District Pulwama to District Budgam. 2. The impugned order has been challenged on the grounds that the petitioner has been transferred from Middle School Chandhara to District Budgam only when Mst. Gulfer Akhter refused to abide by the order of her transfer despite it was issued on reciprocal basis. The husband of the petitioner is a Government employee posted in District Budgam, therefore, the respondents are under obligation to post the petitioner also at the place of posting of her husband as per the policy of the Government. The transfer of the petitioner is premature and further that the petitioner has been transferred to safeguard the interests of the respondent No.5. 3. Mr. M.I. Qadri, learned Sr.A.A.G. and Mr. Syed Mohammad Shafi, Learned counsel has appeared on behalf of the respondents. Mr.Shafi submitted that the petitioner has not come to the court with clean hands and does not deserve the relief prayed for. Petitioner has already filed a suit before the District Judge, Budgam and Munsiff Magistrate, Magam, which fact has been concealed by the petitioner. The petitioner cannot simultaneously seek remedy before two forums for the same relief. The respondent No.5 is suffering since last more than one year and has not been paid salary. Under such circumstances, respondent No.5 requested the authorities to sent her back to her parent cadre i.e. District Budgam. 4. Heard learned counsel for the parties and pursued the pleadings. 5. The grounds taken by the petitioner in wit petition challenging the impugned order are no sustainable. The petitioner has not been transferred prematurely. The transfer of the petitioner 1 to District Budgam has been cancelled by the respondent No.2 who is competent to pass such an order. The impugned order has not violated any fundamental right or service conditions of the petitioner. The transfer order does not suffer for want of jurisdiction or malafidies. The court has limited jurisdiction to interfere in transfer matters as held by the Supreme Court in Mrs. The impugned order has not violated any fundamental right or service conditions of the petitioner. The transfer order does not suffer for want of jurisdiction or malafidies. The court has limited jurisdiction to interfere in transfer matters as held by the Supreme Court in Mrs. Shilpa Boses case (AIR 1991 SC 532), viz: "In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other. He is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-today transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Courts over-looked these aspects in interfering with the transfer orders." In Gujrat Electricity Board and anr. vs. Atmaram Sungmol Poshani (AIR 1989 SC 1433), the Supreme Court observed: Transfer of a Government servant appointed to a particular cadre of transferable posts from one post to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to another is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other." 6. The Supreme Court in State of Madhya Pradesh and anr. vs. S.S.Kourav and others reported in AIR 1995 SC 1056 has pronounced as under: "The courts or tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the ad ministrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. When, as in this case, the transfer order is issued on administrative grounds the court cannot go into the expediency of posting an officer at a particular place." 7. So far as the argument of learned counsel for the petitioner, that the petitioner should be posted at the place of the posting of her husband in terms of the policy of the Government, is concerned, such policy does not vest any enforceable right upon the Government servant. This controversy has been set at rest by the Supreme Court in case Union of India and other vs. S.L. Abbas (AIR 1993 SC 2444) holding that: "Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by maiafides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Unless the order of transfer is vitiated by maiafides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right." For what has been said above, no case for admission is made out. The writ petition is accordingly dismissed.