Research › Search › Judgment

J&K High Court · body

2007 DIGILAW 295 (JK)

Board Of School Education, J&k v. Mohd. Altaf Dar

2007-12-31

MOHAMMAD YAQOOB MIR

body2007
1. Aggrieved by order dated 08.11.2007 passed by 3rd Additional District Judge, Srinagar, instant appeal has been preferred. 2. Shorn of details, precisely factual matrix of the case is that the respondents working as Senior Assistant posted respectively as Storekeeper, Forms KD and General KD of the appellant department have been transferred along with other employees vide order No. 741-B of 2007 dated 22.10.2007 to Branch Office, Shopian and Sub Office Baramulla. After gap of two days, one more transfer order bearing no.761-B of 2007 dated 25.10.2007 came to be issued "By order" under the signature of Deputy Secretary, Administration Central. Pursuant to the said order, respondents have been transferred respectively to Branch-office, Reasi and Sub-office Doda. Both challenged the legality of the order dated 25.10.2007 by filing a suit for declaration and injunction. Alongside suit, application for ad-interim relief seem to have been filed. Learned trial court vide order dated 26.10.2007 has ordered that subject to objections of other side, present status of the applicants (respondents herein) as it exists on date shall be maintained. Finally after objections were filed, learned trial court disposed of the motion for ad interim relief vide order dated 08.11.2007, which is impugned in the present appeal. Operative portion of the said order is reproduced below:- "....the application is allowed and the operation of the impugned order No.761-B of 2007 dated 25.10.2007 in so far as it pertains to the applicant is stayed for a period of two months during which period the applicant shall file a representation before the competent authorities who shall consider and decide the same within the same period of two months from today because the disposal of the main suit may take some more time and if the order is stayed till the final disposal of the suit, the applicant will get undue benefit to stay at his place of posting under the garb of the court orders." 3. Appearing counsel for the appellants with all vehemence at his command projected that transfer is an exigency of service. Judicial review is permissible only when there is mala fide exercise of power or when there is exercise of power in violation of statutory provisions prescribing any such transfer. In the instant case, transfer of respondents is simply in the interest of administration, as such, is not an act of malice. Judicial review is permissible only when there is mala fide exercise of power or when there is exercise of power in violation of statutory provisions prescribing any such transfer. In the instant case, transfer of respondents is simply in the interest of administration, as such, is not an act of malice. It is further contended that no case was made out which would warrant grant of equitable relief in favour of the respondent. It is also averred that the learned trial court has termed the said transfer order as punishment. 4. I have thoughtfully considered the submissions. No doubt, it is the settled position of law, that, once a person has opted for employment, he has to be ready to perform his duties wherever he will be asked to discharge the same but posting shall be in- keeping with the scope and interest of administration otherwise transfer of an employee can be termed to be punishment. Every case has its own facts and features. In the backdrop of peculiar facts and features it is to be assessed as to whether the order of transfer is in the interest of administration or is vindictive. It is quite often seen that an employee, when becomes unruly in his actions, then the employer with the object of avoiding unruly atmosphere opts for transfer of the employee when for such unruly behaviour, punishments are prescribed under relevant provisions of law governing the service conditions. Sidelining the said action, when warranted, if the transfer order is made, same amounts to punishment. 5. Order of transfer under challenge seems not to be in the interest of administration but seems to be with some different object, though, styled to be in the interest of administration. In the order of transfer, by using words "in the interest of administration", the issuing authority is not absolved from satisfying the "test" that the order is in the interest of administration. Two orders of transfer passed in quick succession as referred to above i.e vide order no.741-B of 2007 dated 22.10.2007, respondents have been transferred to Branch-office Shopian and Sub-Office Baramulla but immediately thereafter a gap of two days pursuant to order No. 761-B of 2007 dated 25.10.2007 same persons have been transferred to Branch-office, Reasi and Sub-office Doda. Two orders of transfer passed in quick succession as referred to above i.e vide order no.741-B of 2007 dated 22.10.2007, respondents have been transferred to Branch-office Shopian and Sub-Office Baramulla but immediately thereafter a gap of two days pursuant to order No. 761-B of 2007 dated 25.10.2007 same persons have been transferred to Branch-office, Reasi and Sub-office Doda. Respondents admittedly are residents of Srinagar, have been transferred to Branch Office Shopian and Sub -Office Baramulla then by subsequent order passed after two days transferred to Branch Office Reasi and Sub-office Doda, itself demonstrates as to how far the said order of transfer is in the interest of administration. 6. In Apex Court judgment reported in AIR 1986 SC 1955, it has been held:- "It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona-fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala- fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers cannot but be held as mala- fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration,that even administrative actions should be just and fair." 7. While relying on this judgment, it has to be kept in mind that when the order in the backdrop of facts and feature , appears to be in the interest of administration, then there is no question of judicial review but when the order of transfer is not in keeping with the policy and appears to be arbitrary, then the judicial review is permissible. 8. 8. Viewed thus, learned trial court has correctly appreciated the gamut of the whole matter and has passed a well reasoned order which is absolutely in keeping with the celebrated principles governing the grant or otherwise of equitable relief. No illegality is noticed in the said order, hence, is upheld. Resultantly, appeal is dismissed along with connected CMP(s). Copy of the order along with trial court record be sent back forthwith. Parties to appear before trial court on 04.02.2008.