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2010 DIGILAW 611 (JK)

G. M. Shaksaz v. State

2010-12-10

MUZAFFAR HUSSAIN ATTAR

body2010
1. In response to Order dated 09.12.2010 of the Court, Mr. A.Chesti, ld.AAG submitted at Bar that the Dy. Commissioner, Bandipora informed him that the Government has revoked the order of suspension issued by him vide which petitioner was placed under suspension. Order dated 09.12.2010 is noticed as under: "Learned counsel for the petitioner produced xerox copy of the order dated July 3, 2010 passed by the District Development Commissioner, Bandipora, wherein and whereunder, the petitioner, pending enquiry into his unauthorized absence, was ordered to be placed under suspension with immediate effect. Mr. Chesti is requested to seek instructions as to whether this order has been revoked or is still in force. List tomorrow, December 10, 2010." Learned counsel for the petitioner produced photo copy of Order No. 467-HME of 2010 dated 24.09.2010, whereunder the order of suspension in respect of petitioner has been rescinded. Copy of the order is taken on record. 2. Petitioner is aggrieved of Order No. 553-HME of 2010 dated 28.10.2010, whereunder, the petitioner, who is working as Incharge CMO, Bandipora, has been ordered to be transferred and posted as Incharge Assistant Director Health Services, Kashmir. The writ petition is filed inter alia on the ground that the petitioner has been prematurely transferred; the transfer order has been issued on the complaint filed by the MLA, as allegedly the candidates selected and engaged by the District Development Commissioner at behest of MLA were not allowed to join by petitioner and consequently impugned order constitutes punishment and also stigmatizes the petitioner; the selection process was initiated by the District Development Commissioner, Bandipora for appointment of Doctors and Para Medical Staff under NRHM Scheme but as allegedly the selection process was not fair and transparent and the petitioner, who was a member Secretary of the Committee, was not taken into confidence and the candidates who were selected and appointed being more than required number, the petitioner objected to said selection/appointment and did not allow the selectees/appointees to join and resultantly local MLA as also the Dy. Commissioner harbored grudge and animosity against the petitioner. 3. While considering the writ petition an ex parte order was passed on 08.11.2010. The transfer order impugned in the petition to the extent of petitioner was stayed. It was provided that the petitioner shall be allowed to continue as CMO, Bandipora. Commissioner harbored grudge and animosity against the petitioner. 3. While considering the writ petition an ex parte order was passed on 08.11.2010. The transfer order impugned in the petition to the extent of petitioner was stayed. It was provided that the petitioner shall be allowed to continue as CMO, Bandipora. Petitioner has also filed supplementary affidavit in which he has placed on record the Government Order No. 861-GAD of 2010 dated 28.07.2010, which provides that the department shall make transfer of Government employees strictly in accordance with the transfer policy which inter alia provides that minimum tenure of a Government employee on a post shall be two years and a maximum of three years. It is also provided that premature transfer may be ordered after reasons are recorded. Para 4(ii) of Section C of said order also provides that the Government employee can be transferred earlier also if it is not in public interest or in the interest of administration to allow the employee to continue on a post for a full tenure. Para 4(ii) of Section C is reproduced as under: "(ii) It is not in public interest or in the interest of administration to allow the employee to continue on a post for a full tenure;" The supplementary affidavit was presented before the Registry on 29.11.2010. The official respondents 1 and 2 filed objections. Private respondent who was ordered to be impleaded as party respondent has also filed objections. 4. Heard learned counsel for the parties. Considered the matter. 5. Mr. Bhat, learned counsel appearing for the petitioner submitted that the impugned transfer order has been issued at the behest of local MLA, who is one of the respondents in the writ petition. Learned counsel accordingly stated that the order of transfer is not bona fide but is mala fide one. He also submitted that the petitioner has been stigmatized by impugned order and has been punished at the behest of the MLA. He also submitted that the Government order referred to herein above which has been placed on record alongwith supplementary affidavit does not in normal circumstances permit for transferring an employee before completion of minimum tenure at a place. The learned counsel prayed that writ petition be allowed. 6. Mr. A. Chesti, learned AAG appeared vice Mr. A.M.Magray, Sr.AAG and submitted that the order of transfer is an order passed in the interest of administration. The learned counsel prayed that writ petition be allowed. 6. Mr. A. Chesti, learned AAG appeared vice Mr. A.M.Magray, Sr.AAG and submitted that the order of transfer is an order passed in the interest of administration. Learned counsel submitted that it is specifically denied in the objections that the order has been passed at the behest of local MLA. He also submitted that the order is not issued as a measure of punishment nor in any manner stigmatizes the petitioner. He also submitted that the transfer is an exigency of service and an employee has to work at the place where the employer asks him to work. Ms. Sabeena appeared vice Mr. R.A.Jan and submitted that the impugned order of transfer does not in any manner what so ever infringe any of the legal or fundamental rights of the petitioner. She also invited the attention of the Court to Para 7(VII) of writ petition to show that the petitioner himself has stated that the place where he has been transferred is a better posting than that of the post held by him. The only objection raised is that the petitioner wants himself to be exonerated from the charges leveled against him. The said para is reproduced as under: 7(VII). That the order impugned has been passed in violation of principles of natural justice as the petitioner has not been given full opportunity to defend himself against the allegations leveled against him by the MLA concerned instead of that he has been transferred though the transfer of the petitioner is a better posting than that of the post held by him but the only problem with the petitioner is that he wants to get himself exonerated from all the charges leveled against him before getting any punishment as such the order impugned is in violation of article 14, 15 and 16 of the constitution of India." Learned counsel stated that in view of this pleading of the petitioner in the writ petition the petition would merit outright rejection. 7. True it is that transfer is an incidence and exigency of service. An employee is required to work where he is posted by the employer. It is primarily job of the employer to see at which place the services of the employee can be best utilized. 7. True it is that transfer is an incidence and exigency of service. An employee is required to work where he is posted by the employer. It is primarily job of the employer to see at which place the services of the employee can be best utilized. The action of the employer/Government of transferring an employee from one place to another, however, is not immune from judicial review. The transfer order can be subject of judicial review on three principle grounds viz. if the order is issued by incompetent authority, or is issued in breach of statutory rules or is issued in colorable and mala fide exercise of power. In this case the challenge is not thrown to the impugned order on first two grounds but challenge is thrown on the third ground viz. that the transfer order is issued at the behest of local MLA. This aspect of the issue raised by the petitioner requires to be considered. 8. The plea of the petitioner is that he resisted the selection/appointments of Medical Officers and Para Medical Staff made under NRHM Scheme by the District Development Commissioner, Bandipora at the behest of MLA, which act of petitioner irritated him. The petitioner did not follow the dictates of the District Development Commissioner, as alleged by him. It is the further plea that the Dy. Commissioner and MLA presumably in such circumstances can be said to have harbored malice and grudge against the petitioner. 9. The list of the engaged candidates was published by the District Development Commissioner on 11th May, 2010. The petitioner made complaint in respect of these selections to the Government. The Government took cognizance of the complaint/report submitted by the petitioner and while acting on the said complaint/report issued Government Order No. 330-HME of 2010 dated 11.06.2010 and the selection list issued by the District Development Commissioner, Bandipora was kept in abeyance. Further sanction was accorded to the conduct of enquiry by the Divisional Commissioner, Kashmir in the matter. The grievance of the petitioner was redressed by the Government. Immediately thereafter the petitioner was placed under suspension by the District Development Commissioner, Bandipora on 03.07.2010 but the Government rescinded the said order by issuing Order No. 467-HME of 2010 dated 24.09.2010. Further sanction was accorded to the conduct of enquiry by the Divisional Commissioner, Kashmir in the matter. The grievance of the petitioner was redressed by the Government. Immediately thereafter the petitioner was placed under suspension by the District Development Commissioner, Bandipora on 03.07.2010 but the Government rescinded the said order by issuing Order No. 467-HME of 2010 dated 24.09.2010. The Government not only took cognizance of complaint of the petitioner and redressed his grievances by ordering stay of appointment list and conducting of enquiry, but also rescinded the suspension order issued by the District Development Commissioner. The Government in the aforesaid back drop all along stood by the petitioner, as the petitioner's claim was prima facie found to be justified. 10. Now it requires to be seen as to whether the impugned transfer order is outcome of mala fide action of the Government. The answer has to be in negative. If the Government would have worked under the influence of the local MLA, which is the allegation in the writ petition, then the Government would have not acted on the report of the petitioner and instead of keeping the orders of appointment in abeyance and ordering for conducting enquiry into the matter, would have directed for appointment of the persons. Further if the Government would have succumbed to alleged influence of the MLA concerned and the District Development Commissioner, who according to the petitioner harbored grudge against him, then order of suspension issued by the District Development Commissioner would have been never rescinded. The averments made in the writ petition suggest that the petitioner has come to the Court on the presumptuous conclusion that the order of transfer is stigmatic in nature. This is not true in the circumstances summarized herein above. Government in essence has appreciated the actions of the petitioner that is how orders were passed at his request and on his report. The above referred narration of events takes the wind out of sails of petitioner's case and it is apparent on the face of record that impugned transfer order is not outcome of mala fide exercise of power. The impugned transfer order in these circumstances also does not stigmatize the petitioner. The petition on this score is held to be not maintainable. 11. The impugned transfer order in these circumstances also does not stigmatize the petitioner. The petition on this score is held to be not maintainable. 11. The petitioner has been permitted to place on record the supplementary affidavit subject to all just exceptions by the Court vide its order dated 03.12.2010. The supplementary affidavit has been filed after the objections were filed by the State. The State was, thus, prevented from dealing with the grounds pleaded in the supplementary affidavit. In this type of cases supplementary affidavit can be filed to clear existing position. Supplementary affidavit cannot be filed to project new facts and fresh grounds of challenge. In the matter of writ proceedings facts are to be pleaded and evidence is to be annexed and grounds of challenge have to be raised in the writ petition so as to enable the other side to reply them in their entirety in reply affidavit. The petitioner in the facts and circumstances of this case was required to seek amendment of this writ petition to incorporate the issues raised in the supplementary affidavit so as to enable the respondents to reply the same. In writ petitions in the matter of pleadings a party cannot be allowed to be taken by surprises. Permitting a party to raise issues not in the main pleadings but by filing of supplementary affidavit in the case of like nature would tantamount to denying the right of the other side to respond to same and thus tantamount to denying the opportunity of hearing to other side. Such type of approach cannot be countenanced in law. This view is taken in light of judgment of Hon'ble Supreme Court titled Bharat Singh v. State of Haryana, reported in AIR 1988 SC page 2181. Despite this legal impediment the issue raised is adverted to. 12. The Government has power to order transfer of an employee even before completion of minimum tenure which can be done in the interests of administration. As there is no allegation against the Government and in fact the Government has all along stood by the petitioner, the impugned order can be said to have been issued in the interest of administration. Petitioner himself is satisfied with the order as he has himself admitted that he will be better placed on the post he has been transferred to in terms of impugned order. Petitioner himself is satisfied with the order as he has himself admitted that he will be better placed on the post he has been transferred to in terms of impugned order. His contention that the order is stigmatic and has been issued as a measure of punishment is only a figment of his imagination. The petitioner has been transferred to post of equal status. The foul atmosphere created in the district in the facts unveiled in this case is bound to affect the working of administration in district, which in terms will adversely affect the public and Government interest. The transfer order impugned in this petition is in tune and in accord with para 4(ii) of Section C of Government Order No. 861-GAD of 2010 dated 28.07.2010 13. The transfer order in no way affects the service rights of the petitioner and will not tantamount to punishment and cannot be said to stigmatic. 14. For the above stated reasons this petition being merit less is dismissed alongwith connected CMPs. Interim direction shall stand vacated.