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2002 DIGILAW 174 (JK)

Quoser Riyaz Koul v. State Of J. &K.

2002-05-27

V.K.JHANJI

body2002
In this writ petition, the petitioner is challenging orders dated 8.10.1998 and 13.10.1998. Vide order dated 8.10.1998 the petitioner, a Junior Engineer with Srinagar Development Authority (hereinafter referred to as "the Authority") was transferred to Jammu and Kashmir Housing Board, Srinagar. Vide order dated 13.10.1998, issued in partial modification of order dated 8.10.1998, petitioner was directed to report to Directorate of Local Bodies, Kashmir. 2. In brief, the facts are that the petitioner was initially appointed as Draftsman in the Authority and subsequently he was promoted as Junior Engineer. Vide order dated 8.10.1998 the petitioner was transferred from the Authority to Jammu and Kashmir Housing Board, Srinagar, by Commissioner-cum-Secretary to Government, Housing and Urban Development Department, Srinagar. The petitioner was relieved from the Authority on 8th October, 1998 itself and was directed to report for duty in the Jammu and Kashmir Housing Board (hereinafter referred to as `the Housing Board). Petitioner reported for duty in the Housing Board, but the Housing Board expressed its inability to allow the petitioner to join there as, according to the Managing Director, Housing Board, the work load of the Housing Board did not warrant the additional post of Junior Engineer. Accordingly, the Managing Director, Housing Board, vide communication dated 9.10.1998, informed the Commissioner-cum-Secretary to Government, Housing and Urban Development Department, Srinagar, that the work load of Housing Board in Kashmir Division at that time did not warrant the additional post of Junior Engineer as the Housing Board had got sufficient number of Junior Engineers. The Managing Director requested the Commissioner-cum-Secretary to Government, Housing and Urban Development Department to post the petitioner in some other organisation. The petitioner submitted his joining report to the Executive Engineer of the Authority on 10th October, 1998. However, vide order dated 13.10.1998, issued in partial modification of Government order dated 8th October, 1998, the petitioner was trasnferred and posted in the Directorate of Local Bodies, Kashmir, for utilization of his services at Kupwara on the terms and conditions as contained in Government order dated 8th October, 1998. 3. In this writ petition, as noticed earlier, the petitioner has challenged both the orders dated 8th October, 1998 and 13th October, 1998 and the ground of challenge is that the petitioner is an employee of the Authority and is borne on the cadre of the Authority and so, he cannot be transferred to any other Department of the Government. 3. In this writ petition, as noticed earlier, the petitioner has challenged both the orders dated 8th October, 1998 and 13th October, 1998 and the ground of challenge is that the petitioner is an employee of the Authority and is borne on the cadre of the Authority and so, he cannot be transferred to any other Department of the Government. According to the petitioner, the Authority is an autonomous body and, therefore, the Government has no control over the employees of the Authority. 4. Upon notice, respondents in their detailed objections have stated that the petitioner, on being transferred to the Housing Board, acquiesed in the transfer and joined there but, since the services of the Junior Engineer were not required in the Housing Board, the Managing Director of the Housing Board took up the matter with the Commissioner-cum-Secretary to Government, Housing and Urban Development Department, Srinagar, for posting the petitioner in some other organisation. Thereafter, vide Government order dated 13th October, 1998, issued in partial modification of earlier order dated 8th October, 1998, the petitioner was transferred and posted in the Directorate of Local Bodies for utilisation of his services at Kupwara. The respondents have further stated that in the case of the petitioner, the orders have been passed with the approval of the Minister, Housing and Urban Development Department who is also the Chairman of the Authority. The respondents have further stated that the staff in various Departments and Autonomous Bodies under the administrative control of the Housing and Urban Development Department was getting stagnated at a particular place of posting for a long time, therefore, it was decided to get the staff enthused, experienced and trained on inter -departmental basis to ensure a healthy growth and productivity so as to rejuvenate, re-activiate and gear-up the staff for better results. The respondents have stated that the petitioner was not the sole transferee, but some other persons also came to be transferred by the order of transfer. The respondents thus prayed that the writ petition be dismissed. 5. Learned counsel appearing on behalf of the petitioner contended that the Authority is an autonomous body and the petitioner, being an employee of the Authority, cannot be transferred to any other Department of the Government, in as much as the service under the Authority is not a centralised service or a service at the State level. 5. Learned counsel appearing on behalf of the petitioner contended that the Authority is an autonomous body and the petitioner, being an employee of the Authority, cannot be transferred to any other Department of the Government, in as much as the service under the Authority is not a centralised service or a service at the State level. In support of his submission, learned counsel has cited General Officer Commanding-in-Chief v. Subash Chandra, AIR 1968 SC 876 wherein it was held as under:- " Each of the Cantonment Boards is an autonomous body and the employees of one Cantonment Board cannot be transferred to Another Cantonment Board in as much as the service under the Cantonment Board is not a centralised service or a service at the State level." 6. According to the learned counsel, the transfer of the petitioner is by a person who is not competent to transfer him from the Authority. Learned counsel has also cited a judgment of this Court delivered in SWP No. 1158/99, titled S. Gurcharan Singh v. State of J&K & Ors. decided on 17th October, 2000 whereby this Court, after noticing sections 3, 5 and 37 of the Jammu and Kashmir Development Act, 1970, quashed the transfer order of an employee from the Jammu Development Authority to Jammu Municipal Committee. 7. Against this, learned counsel appearing on behalf of the respondents submitted that the Authority vide Resolution dated 23rd November, 1973 passed in its 10th Meeting held in the office of Vice Chairman of the Authority, adopted all State Government Codes, Rules and Regulations, including Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 and Government Servants Conduct Rules, and so, under the said Rules, the Minister, who also is the Chairman of the Authority, is competent to transfer an employee of the Authority, including the petitioner, from the Authority to any other Department of the Government. SRO 475 dated 24.12.1996 has been placed on record. SRO 475 dated 24.12.1996 has been placed on record. This SRO shows that the Minister for Housing and Urban Development, as the Chairman of the Authority Financial Commissioner (Planning and Development) Additional Chief Secretary, Finance; Divisional Commissioner, Kashmir, Secretary, Housing and Urban Development Department; Administrator, Srinagar Municipality; Chief Architect, Jammu and Kashmir; Chief Town Planner, Kashmir, and Vice Chairman, Srinagar Development Authority, are the members of the Authority as provided under Section 4 of the Development Act, 1970, Learned counsel for the respondents has also placed on record Notification No. SDA /VC purportedly issued in October, 1982 in exercise of the powers conferred by section 47 sub-section (i) of the Jammu and Kashmir Development Act, 1970, whereby the Authority delegated the powers as detailed in annexure to the said Notification, to be exercised various functionaries of the authority. Learned counsel further submitted that the judgment in Gurcharan Singhs case (supra) cannot be cited as a precedence as in the said judgment the Resolution passed by the Authority for adopting the State Rules, as mentioned hereinabove, was not brought to the notice of the Court, nor it was brought to the notice of the Court that the Minister for Housing and Urban Development Department is also the Chairman of the Authority and under the rules he is competent to transfer the employees of the Authority to any other Department of the Government. 8. I have heard learned counsel for the parties at length and have carefully gone through the record of this case. 9. It is now well settled that no Government servant or employee of a public undertaking has any legal right to be posted for ever at any particular place, since transfer of an employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Their lordships of the Supreme Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, AIR 2001 SC 3309, have laid down that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. 10. The Srinagar Development Authority has been constituted under the Jammu and Kashmir Development Act, 1970. Section 5 of the Act provides for appointment of its staff. It states that the Authority may appoint such officers and employees (including experts for technical work) as are necessary and may assign to them such duties and pay such salary and allowance as it may determine from time to time; provided that the appointment of officers on posts carrying a maximum pay scale which exceeds Rs. 950/- per month shall be made after prior approval of the Government. Section 37 of the Act deals with the control by Government. It states that the Authority shall carry out such direction as may be issued to it from time to time by the Government for the efficient administration of the Act. Proviso to section 37 provides that the Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. 11. As noticed earlier, vide Resolution dated 23rd November, 1973 passed by the Authority in its 10th Meeting, all State Government Codes, Rules and Regulations, including classification, Control and Appeal Rules, 1956 and Government Service Conduct Rules, were made applicable to the employees of the Authority. Rule 27 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as `the CCA Rules,1956) provides for posting and transfers. It reads as under : "27. Posting and transfers: (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. It reads as under : "27. Posting and transfers: (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." Regulation 52-B of the Jammu and Kashmir Civil Service Regulations deals with appointments by transfer on deputation. It reads as under:- "52-B (a) The term `deputation will cover appointments made by transfer of `inservices Government servants in public interest outside their parent organisation on a temporary basis. The deputation may be from one Government Department to another of the State Government or from a Government Department (of the state) to any Corporation, Autonomous Body, Public Sector Undertaking wholly owned and controlled either by the State Government or by the Central Government or any other State Government in the country. It shall include transfers made in public interest to Municipalities, Local Bodies, Statutory Bodies and all other Non-Gazetted Organizations, bodies and institutions within or outside the State." Rule 27 of the Classification, Control and Appeal Rules, 1956 and Regulation 52-B of the Jammu and Kashmir Civil Service Regulations came up for consideration before this Court in J. L. Bamzai v. State of Jammu and Kashmir & Ors., SLJ 1990 J&K 8. This Court, while dealing with the two Rules, opined that a combined reading of these two provisions would show that in fact, transfer and deputation are intended to meet and cover the same exigencies, though in different fields and under different circumstances. This Court held that the term deputation under Regulation 52 of the Regulations includes transfers made in public interest to any other department, Government Corporation, Company, Autonomous Body or Public Sector Undertaking. It was said that on transfer, there is no change in the condition of service to the detriment of the employee, nor the employee loses any of the rights conferred upon him under the service rules applicable. It was said that on transfer, there is no change in the condition of service to the detriment of the employee, nor the employee loses any of the rights conferred upon him under the service rules applicable. In both the cases, i.e., deputation or transfer, he retains his lien in his parent department, his pay is not reduced, his promotion changes are not taken away, he is not demoted to a lower post, nor any stigma is cast upon him, unless the order is mala fide or is passed as a measure of punishment. The deputation of an officer, or his transfer, even without his consent, will not violate his condition of service. It also rejected the contention that Rule 27 and Regulation 52 are inconsistent, by saying that they are not inconsistent but are complementary and supplementary to each other. Regulation 52 envisages exigency of transfers, not contemplated by Rule 27 of the Rules. The term `transfer, as used in Rule 27 of the Rules, was held to be synonymous with the term `deputation, as used in Regulation 52-B of the Regulations. 12. In the present case also, with the adoption of the Classification, Control and Appeal Rules, 1956 and J&K Civil Service Regulations, the employees of the Authority in regard to the posting and transfers and transfers on deputation are governed by Rule 27 of the Rules and Regulation 52-B of the Regulations and they can be transferred from the Authority to any other Department of the State Government, to any other State Corporation, Autonomous Body wholly owned and controlled either by the State Government or by the Central Government. The transfer of the petitioner from the Authority to the Jammu and Kashmir Housing Board and then to the Directorate of Local Bodies, Kashmir, in terms of regulations 52-B of the regulations cannot be said to be bad in law. Moreover, the Jammu and Kashmir Housing Board is wholly owned by the State Government and likewise, the Directorate of Local Bodies, Kashmir, is one of the Departments of the State Government. This being the case, it cannot be urged that petitioners transfer is against law because it is not provided under the Development Act or the Rules framed thereunder, either expressly or by implication. 13. This being the case, it cannot be urged that petitioners transfer is against law because it is not provided under the Development Act or the Rules framed thereunder, either expressly or by implication. 13. The submission of the learned counsel for the petitioner, that the transfer of the petitioner is not by a person who is competent to transfer, is devoid of any merit. The order of transfer is under the signatures of the Under Secretary. Under Rule 12 of the Jammu and Kashmir Business Rules, the Government functions through various Secretaries of the Government. Secretary, Additional Secretary, Deputy Secretary or Under Secretary have no personal authority, nor they are the persons of authority. Both the orders passed in this case were with the approval of the Minister, Housing and Urban Development, who is also the Chairman of the Authority. The Minister, being the Head of the Department as Chairman of the Authority, was competent to transfer the petitioner from the Authority to any other Department or Autonomous Body of the Government. The judgment in Gurcharan Singhs case (supra) does support the case of the petitioner. However, in my view, the judgment is per incuriam as the statutory provisions contained in the Classification, Control and Appeal Rules, the Civil Service Regulations as also the Resolution passed by the Authority in its 10th Meeting held on 23rd November, 1973 were not the subject matter of the writ petition, nor were they brought to the notice of the Court. 14. Lastly, learned counsel for the petitioner has not been able to point out how the transfer of the petitioner, which is temporary in nature, to other Department of the Government is detrimental to him and how that is going to affect his conditions of service. 15. In view of the above, there is no merit in this writ petition. It is, accordingly, dismissed. The connected CMPs and contempt petition too, shall stand dismissed.