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2001 DIGILAW 290 (JK)

Nazir Ahmed Wani v. union Of India

2001-11-20

SYED BASHIR-UD-DIN

body2001
1. Petitioner 1 to 3, LDCs, and Petitioners 4 and 5 UDCs in Door- Darshan Kendar, Srinagar have been transferred outside the state in north-zone vide order dated 15.3.2000 (Annexure -A). These clerks have challenged the transfer and are seeking quashment of the impugned order with prayer for their continuance at Srinagar. The grounds taken to challenge the transfer are that the order is malafide for the reason that 14 employees of Doordarshan Kendar, Srinagar who were transferred outside the State, however petitioners alone have been given marching orders pursuant to the impugned transfer order, whereas the other nine colleagues of petitioners have been retained at Srinagar after their ordered transfers were cancelled on 28-3-2000 (Annexure -C). Petitioners are stated to be above 50 years of age and cannot serve outside the Valley in hot climate. Petitioner No.1 Nazir Ahmed Wani is at the verge of retirement and is not suitable to be shifted from Srinagar. Petitioners, residents of the valley, cannot leave their children behind in the prevailing situation as it is not safe for them to stay back. As some of the employees of Doordarshan Kendra, Srinagar under transfer have been shown favour by canceling their transfer, the impugned order suffers from malafidies. Petitioners have been singled out for discriminatory treatment. 2. Respondents in their counter through Director Doordarshan Kendra, Srinagar have filed reply. It is contended that the transfer of the petitioners, employees of Parsar Bharti, holding transferable posts, have been ordered in the exigency of service and in public interest to operation alise the new installations with the help of the existing staff strength drawn from the different kendras. Such staff members of the Parsar Bharti which have been drawn and posted to different installations are numbering three hundred. The impugned transfer is for administrative reasons and in public interest. The transfer order is as per the government decision with approval of the C.E.O of Parsar Bharti. The criteria of longest continuous stay at a Kendra, as laid down in the transfer policy for staff of the Parsar Bharti, has been adhered to and adopted. As petitioners did come within the criteria laid, therefore, they have been transferred as per the transfer policy. The criteria of longest continuous stay at a Kendra, as laid down in the transfer policy for staff of the Parsar Bharti, has been adhered to and adopted. As petitioners did come within the criteria laid, therefore, they have been transferred as per the transfer policy. Though the guideline for transfer of a person of 45 years of age, not ordinarily to be posted to a high altitude station, is in place, but all the same such a guide line does not confer any enforceable right under law to the transferee. The guide lines have been followed to the extent possible after keeping in view the abnormal situation in the State and to make the new installations operational with the help of the existing staff strength with different zones of the country. Petitioner No.1 has on his own showing yet six years to retire, therefore, is not on the verge of retirement, as contended. It is only, those staffers, who come within three years of reaching age of superannuation are required to be posted at home town. The petitioners have been transferred from Doordarshan Kendra Srinagar, to DMC Jammu & DMC Shimla, the nearest stations to Srinagar within the North Zone. The impugned transfers are in the Public interest as exigencies of service. Only those who are having longest continuous stay in the Door Darshan Kendra Srinagar have been transferred. The orders of some of the staffers were cancelled after discrepancies in respect of their continuous stay at Srinagar was brought to the notice of the competent authority. It is only in case of two persons form North zone transfer has been cancelled. The allegations of favouritism, malafide treatment and discrimination are denied. 3. Heard. 4. The impugned order speaks of transfer of petitioners-clerks in public interest. In terms of the reply affidavit filed, the administrative exigencies in public interest pleaded is to operationalize the new installations with availability of required hands out of the existing staff strength of Parsar Bharti, the Broadcasting Corporation of India, New Delhi and the criteria given for the transfer is longest continuous stay at the existing place of posting. The transfer policy is averred to have been adhered to. The transfer policy is averred to have been adhered to. Even, if a transfer order is in violation of executive instructions/orders or the transfer does not conform to a guideline for transfer which are in the nature of executive instructions, there is no justification for interference of the High Court in writ jurisdiction. Transfer of an employee appointed to an transferable post on administrative exigency or in public interest cannot be interfered with, notwithstanding, that the transfer order may operate harshly in respect of a particular employee so for the problems personal to him are concerned. The proper course for such employee is to approach the authorities in the organization or the department, rather than to rush to the court for intervention. No foundation with the necessary facts and circumstances is laid in the petition to show that the transfer in question is in violation of any statutory rules or on grounds of malafide or the order is discriminatory or based on favouritism. Mere use of such platives like malafidy discriminatory favouritism violation of rules etc. in absence of pleadings and supporting material would not suffice (See-i)Ms Shilpi Bose & ors Vs. State of Bihar, & Ors (AIR 1991, SC: 532) ii) Union of India and ors Vs. SI. Abass, (1993: 25 ATC 844) and iii) Union of India and ors Vs. R.N. Kirtania (1989 vol. III Sec.445).) 5. In State of Punjab and others Vs. Joginder Singh Dhatt, (AIR 1993 SC: 2486), it is observed: ..........this court has time and again expressed its disapproval of the courts below interfering with the order of transfer of Public servant from one place to another. It is entirely for the employer to decide when where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer, The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no justice was caused." 6. The order is not passed beyond jurisdiction or by incompetent authority. The impugned transfer, exfacie does not appear to cause any injustice to concerned. 7. In result, the writ petition is dismissed in limine. The order is not passed beyond jurisdiction or by incompetent authority. The impugned transfer, exfacie does not appear to cause any injustice to concerned. 7. In result, the writ petition is dismissed in limine. The interim direction shall also go with the main petition.