Research › Search › Judgment

J&K High Court · body

2000 DIGILAW 59 (JK)

Gh. Hassan v. State Of J. &K.

2000-03-28

NISAR AHMAD KAKRU

body2000
1. The petitioner, a Professor in the Medical College Srinagar and a permanent member of the Jammu and Kashmir Medical Education (Gazetted) Service has been transferred to Government Dental College, Srinagar against the post of a Professor borne on the service of the Dental College vide order No. 14-HME of 2000 dated 1-2-2000, which reads as under: 1. Transfer of Dr. Ghulam Hassan Professor of Anatomy, Government Medical College, Srinagar to Dental College, Srinagar against the post of Professor held by Dr. Kulbir Kour, Dr. Ghulam Hassan will, however, retain his lien in Medical Education Department; 2........... 3........... This order will have immediate effect. By order of the Government of J&K. Sd/ Principal Secretary Secy. to Government Health and M. Education Department. 2. The transfer outside the Jammu and Kashmir Medical Education (Gazetted) service is questioned by the petitioner. To bring home the point it is argued that the petitioner is borne on the Medical Education service, whereas the impugned order has the effect of transferring him to the Jammu and Kashmir Dental Education (Dental College) Gazetted Service constituted vide SRO 75 of 1993 dated 15-4-1993 which forms a separate service, therefore, the impugned order is said to be violative of the Medical Education Rules, 1979. This attack needs to be viewed in the light of the fact that it is the admitted case of the petitioner that he is a member of the Medical Education Gazetted service. In this background Sub Rule 2 of Rule 15 of the Jammu and Kashmir Medical Education (Gazetted) Service assumes significance which is reproduced hereunder: The Government may, in the exigencies of public service, temporarily post any member of the service to perform such duties as may assign to him outside his service.....� 3. From the language of aforementioned sub Rule it is manifest that the power flows to the Government to assign the duty to a member of the service outside the Medical Education service provided he is assigned such job temporarily. Whether the petitioner has been transferred permanently or temporarily, the text of the order speaks for itself which depicts that the petitioner™s lien continues in the Medical Education Department. Obviously, he shall be deemed to be in continuity of the service he belongs to and retention of his lien substantiates the fact that he has been temporarily assigned the job in the Dental College to meet the exigencies of administration. Obviously, he shall be deemed to be in continuity of the service he belongs to and retention of his lien substantiates the fact that he has been temporarily assigned the job in the Dental College to meet the exigencies of administration. Thus the power to transfer outside the service temporarily, being traceable to the rules challenge of infraction of statutory rules is without any basis. 4. It is next contended that the power of transfer flows to the respondents from Rule 27 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 which envisages transfer of a Government servant on the cadre of a service or class of which he is not a member. In this behalf, he has referred to several judgments, to which no reference is called for, because the contention of the petitioner appears to have been advanced in ignorance of sub Rule 2 of Rule 15 of the Jammu and Kashmir Medical Education Rules. Be that as it may, since the petitioner™s transfer outside his service is temporary in character, therefore, the argument based on Rule 27 of the Jammu and Kashmir (Classification, Control and Appeal) Rules, of 1956 has paled into insignificance and calls for no adjudication. Moreso, the petitioner claims protection of his service rights on the basis of very Medical Education Rules on which sub Rule 2 of Rule is also written which confers the power on the government of the transfer in question. 5. This order is also questioned on the ground that it has been passed at the behest of the Minister to accommodate respondent No.3, therefore, emenates from malafides. The contention cannot be taken cognizance of, for the simple reason, that the Minister is not a party to the writ petition. 6. It is next contended that the petitioner has been transferred against a lower post. This plight of the petitioner needs to be appreciated in the light of the text of the order impugned and its plain reading reveals that he has been transferred to an equivalent post and not to a lower post nor to a post which carries less pay than the post the petitioner holds, therefore, the order impugned is no way detrimental to his interests. 7. It is also contended that the order impugned deprives the petitioner from the position of the Head of the department. 7. It is also contended that the order impugned deprives the petitioner from the position of the Head of the department. This argument has been controverted by the other side on the ground that there is no post of Head of the department in the discipline of Anatomy or in any other discipline of the college. In this behalf reference has been made to the schedules appended to the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules 1979 and examining the petitioner™s contention in the light of the schedules referred to the contention does not appear to be well founded. 8. The settled position in law being that a government servant, holding a transferrable post, has no vested right to remain on a particular place and the transfer being a normal feature of service and administrative in character the order of transfer can be passed by the competent authority in the exigencies of service at any time, but the power has to be exercised in public interest honestly, bonafide and reasonably. Thus, when the transfer order is passed purely on administrative grounds, the courts, ordinarily, do not interfere nonetheless, if the order is without jurisdiction or violative of statutory rules or is passed for collateral purposes and with oblique motives, it will tantamount to abuse or misuse of power and the interference is called for. Examining contentions of the petitioner in the light of facts and circumstances of this case, I am of the opinion that it does not fall within any of the aforementioned exceptions. In the result the writ petition fails and is dismissed alongwith the CMPs. Interim order is vacated. No order as to costs.