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2010 DIGILAW 423 (JK)

Mohd. Ibrahim v. State Of J&K

2010-07-31

J.P.Singh

body2010
1. Petitioners have filed this Writ Petition questioning Director School Education, Jammu’s Order No. DSEJ/NG/TR/592 dated 20-4-2010, whereby they have been transferred to Middle School Sia Langan; High School Ghari and Middle School Dharan respectively, on complaint basis and seeking its quashing. 2. Their learned Counsel’s short submission to support their challenge to the order impugned in the Writ Petition is that petitioners’ transfer, made on the basis of the Complaint, without hearing them in the matter, was illegal and unjustified, in that, before issuing the order, which was stigmatic in character, the principles of Natural Justice had not been followed by the respondents. 3. Mr. Basotra, learned AAG submitted that the Complaint against the petitioners being serious, the Director had considered it fit, in the interest of administration and smooth functioning, of the School, to transfer the petitioners and the transfer not being pre-mature or otherwise unsustainable, the petitioners were disentitled to invoke the extra-ordinary writ jurisdiction of the Court. 4. I have considered the submissions of learned counsel for the parties and perused the complaint and the records which were made available by the learned State Counsel. 5. Transfer being an incidence of service may not be interfered with by the Courts unless, however, it was found arbitrary, malafide or against law, is a settled position in law. 6. The records produced by the learned State Counsel, however, reveal that except the complaint, there was no other material with the Director, School Education, justifying petitioners’ transfer. It, therefore, appears that the transfer of the petitioners has been ordered solely on the basis of the Complaint. 7. It is true that the employer has the prerogative to consider and decide the place of posting of its employees to run its administration and a bonafide exercise made in this behalf may not be open to question. However, where the transfer is found to have been ordered merely on the basis of a Complaint, it may not be justified and warranted unless the Complaint had been examined or otherwise found prima facie justified. 8. In the absence of any material on records indicating even prima facie consideration of the Complaint by the Director much less her holding inquiry into it, the petitioners’ transfer may not be justified, in that, their transfer on complaint basis causes them stigma. 8. In the absence of any material on records indicating even prima facie consideration of the Complaint by the Director much less her holding inquiry into it, the petitioners’ transfer may not be justified, in that, their transfer on complaint basis causes them stigma. The Director, School Education, Jammu was required to satisfy herself about the merit of the Complaint before passing the order impugned in the Writ Petition. The order passed by the Director, without hearing the petitioners and finding the Complaint justified, even prima facie, cannot thus be sustained. 9. Looking to the nature of the allegations made in the Complaint against the three petitioners and finding that the Director, School Education had issued the transfer order without getting the Complaint verified for prima facie satisfaction about its merit, the order impugned in the Writ Petition which is stigmatic in nature needs to be quashed for violation of the principles of Natural Justice and being otherwise arbitrary as it does not appear to have been issued for smooth functioning of the School, as so indicated in the impugned order. 10. This Writ Petition, therefore, succeeds and is accordingly allowed, quashing Director, School Education, Jammu’s Order No. DSEJ/NG/TR/592 dated 20-4-2010. The respondents are, however, left free to enquire into the Complaint against the petitioners or otherwise satisfy themselves about its merit before passing such orders as warranted under law and in the interest of administration.