Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 288 (JK)

Paldan Punchok v. State

2001-11-20

A.M.MIR

body2001
Oral 1. What has prompted the petitioner to file this petition is that vide Government Order No. 432-Works of 2001 dated: 25-09-2001, he was transferred and posted in MED Leh. He assumed the charge on 26-09-2001 and the impugned order was passed on 28-09-2001, whereby modifying the order of transfer, the petitioner was posted at Kargil. 2. The only point raised before the court by Mr. Raina is that there was not necessity for picking up and singling out petitioner only and modifying his earlier order of transfer. No other point was urged. 3. The question that arises for determination of the Court is as to whether respondent-State has the power to modify an order passed by it earlier. 4. Law on the point is clear that an authority which has the power to pass an order has also power to withdraw, rescind or modify the same. Reliance can be placed on Section 21 of the General Clause Act, which is reproduced as under:- 21. Power to make, to include power to add, to amend, vary or rescind orders, rules or by-laws.-Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." 5. It has often been seen that writ petitions against orders which modify an earlier transfer order pour in. The general impression with such litigants is that earlier transfer order gives them a right of working at the place indicated therein. This is not so. An employee has to work at a place where the employer wants him to. Rule 27 of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956 gives an absolute power of transfer and posting to the employer. This provision reads as under- 27. Posting and transfer- (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. (a) All transfers and postings shall be made by the authority prescribed by Government in this behalf. The object of absoluteness of these powers is to enable the employees to run the administration. (a) All transfers and postings shall be made by the authority prescribed by Government in this behalf. The object of absoluteness of these powers is to enable the employees to run the administration. The employer has to watch and guard the administration. This is how orders of transfer are issued to serve the interests of administration. An order of modification is always read in the light of the order it modifies. Thus unless the modification order is vitiated by malafides, the Court will while reposing confidence in the authority presumes that modification order also was made in the interest of administration. 6. On the subject of transfer the thrashed point of law all along adopted is that a transfer order can be challenged only on two ground:- (i) lack of jurisdiction, & (ii) malafides. Frequency of transfer is an attribute of malafides, whereof, I do not refer to frequency as a separate ground. Here in the present case, none of these grounds has been urged. 7. On the analogy of the above findings I find no legal lacuna in the order impugned and as such the petition challenging the same must fail. The same is accordingly dismissed and interim direction issued by this court on 03-10-2001 is withdrawn.