Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 159 (JK)

Ab. Ahad (Dr. ) v. State Of J. &K.

2001-07-30

S.K.GUPTA

body2001
1. Heard Mr. Jehangir Ganai, advocate for the petitioner at length. Also heard Mr. M.I. Qadiri, Sr. AAG, for the respondents. At this stage, Mr. G.N. Hagroo appeared and filed his Vakalatnama, which is taken on record, for arguing the case on behalf of the petitioner. Mr. Hagroo was allowed to argue and heard him also at length. 2. Case of the petitioner is that he has been functioning as Professor, Head of the Department, Anatomy, in Government Medical College, Srinagar. He has been transferred vide order No. 457-HME of 2001 dated: 06.07.2001 and directed to report respondent No. 3, Director Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar and on the same, respondent No. 4, Principal Medical College, Srinagar, issued relieving order vide his order No. 286-GSMC of 2001 dated: 06.07.2001 relieving the petitioner from the College. It is contended that transfer order and the relieving order have been passed on malafide and extraneous considerations and that when a person is to be transferred from his department to some other department, same is governed by deputation Rules and this has been done in order to victimize the petitioner. 3. In controverting the contention, the respondents submitted that by transfer of the petitioner, no right has been violated or infringed. Transfer is an exigency of service. That even transfer by way of deputation is a recognized from one department to another and the lien of the petitioner is retained in the parent department. That the petitioner has been transferred to Medical College, Bemina, which is under the control of the Government as well. Mr. Qadiri, respondent™s counsel, further refuted the allegations that the transfer is on malafide and extraneous considerations. Lastly, it was submitted by Mr. Qadiri that a Government servant cannot claim to remain in a particular place or in a particular post unless, of course, his appointment itself is so specified, non-transferable post, which is not the case of the petitioner and, thus prayed that there is no cause to maintain the writ petition and the same be dismissed. 4. Qadiri that a Government servant cannot claim to remain in a particular place or in a particular post unless, of course, his appointment itself is so specified, non-transferable post, which is not the case of the petitioner and, thus prayed that there is no cause to maintain the writ petition and the same be dismissed. 4. Indubitably, an order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is malafide or that the service Rules prohibit such transfer or that the authorities, who have issued the order, had not the competence to pass the order as it is held by the Supreme Court in State Bank of India Vs. Anjan Sanyal and others, AIR 2001 SC 1748. It is not disputed that the order of transfer has been issued by a competent authority. The only grievance is that the order is malafide and for extraneous considerations. It stems out evidently from the frame of the transfer order that it has been made administrative reasons, and no other purpose could be carved out by the petitioner much less on the alleged ground of malafide during debate. In the instant case, the petitioner admittedly has been relived by respondent No. 4 by issuing the relieving order dated: 06.07.2001, and the order of transfer stood implemented. Transfer is always understood and construed as an incident of service. The petitioner could not show that the transfer is malafide and made not for professed purpose, such as in normal course or in administrative interest or in the exigencies of the service. Service of an officer to another department is treated as equivalent to service in parent department where lien is retained as it is this case and borne out from the transfer order, which reads as under: - Dr. Abdul Ahad incharge Professor Anatomy Government Medical College, Srinagar is hereby transferred and directed to report to Director, Sher-i-Kashmir Institute of Medical Sciences forthwith for utilization of his services in Medical College, Bemina. He will retain lien in his parent department. By order of the Govt. of Jammu and Kashmir.� 4. Deputation and transfer are not inconsistent and rather are complementary and supplementary to each other. He will retain lien in his parent department. By order of the Govt. of Jammu and Kashmir.� 4. Deputation and transfer are not inconsistent and rather are complementary and supplementary to each other. Term transfer as used in Rule 27 of the J&K Civil Service (C.C&A) Rules is synonymous with the term deputation as used in Regulation 52 (B) of the Civil Service Regulations. The combined reading of Rule 27 of the Rules and Regulation 52 (B) of the Regulations would show that on fact transfer and deputation are intended to meet and cover the same exigencies. No fundamental or non-fundamental, legal or statutory right of the petitioner has been violated and there being no substance in the writ petition. It is hereby dismissed alongwith all connected CMPs and disposed of accordingly. Stay if any, granted shall stand vacated in resultant thereof.