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2011 DIGILAW 171 (JK)

Abdul Hamid Rather v. State of J&K & Ors.

2011-04-08

HASNAIN MASSODI

body2011
1. Heard. Admit. 2. The petition, having regard to the controversy involved, is at request of learned counsel for parties taken up for final disposal. 3. The petitioner, working as Incharge Principal, Higher Secondary School, B.K. Pora, since 15th May, 2008, is aggrieved of Government Order No. 792-Edu of 2010 dated 03.11.2010, whereby the petitioner has been transferred and posted as Incharge Principal Higher Secondary School, Kachwamuqam, Baramulla against the available vacancy. The petitioner's grievance is that the aforementioned order, impugned in the petition, has been made in violation of transfer policy, notified vide Government Order No. 861-GAD of 2010 dated 28.07.2010 inasmuch as the officer - respondent No. 4 herein, posted as Incharge Principal Higher Secondary School, B. K. Pora, in place of petitioner, was not due for transfer in terms of the transfer policy, and thus could not have been transferred/posted in place of petitioner as Inchafge Principal, Higher Secondary School, B.K. Pora. The petitioner seeks quashment of Government Order No. 792-Edu of 2010 dated 03.11.2010, as it relates to petitioner on following grounds: (i) that in terms of transfer policy, para A, Sub para 6, the transfer order once issued, is to be strictly complied with and modification, if any, is to be made in exceptional case for compelling reasons and that also after obtaining approval of next higher authority and for reasons to be recorded in writing; that in the present case transfer of respondent No. 4, initially posted as Incharge Principal Higher Secondary School, Ghadole, Anantnag against the available post vide Government Order No. 790-Edu of 2010 dated 29th October, 2010 has been modified vide impugned order only five days after the initial transfer order was made in absence of any compelling reason and without obtaining approval of next higher authority and without recording reasons in writing; (ii) that the transfer order of respondent No. 4 has been modified five days after it was made, in violation of para C sub para 1 of transfer policy, whereunder the minimum tenure of employee on the post is required to be two years; (iii) that in terms of Para C sub Para 3 premature transfers wherever unavoidable in the interest of administration are to be ordered with prior approval of Minister Incharge for reasons to be recorded, while in present case the impugned order was neither made with the approval of Minister Incharge nor were any reasons recorded to justify the order. 4. The petitioner, on the strength of grounds set out in the petition, seeks writ of certiorari, quashing Government Order No. 792-Edu of 2010 dated 3rd Novem­ber, 2010, in so far it relates to the petitioner. The petitioner seeks direction to respondents to allow the petitioner to continue to work as Incharge Principal Higher Secondary School, B. K. Pora, Budgam. 5. The writ petition is opposed on the grounds that the respondent 1 to 3 are competent to order transfer of a Government employee in the interest of Adminis­tration and that the petitioner having a long mature stay as Incharge Higher Secondary School, B. K. Pora, Budgam was rightly transferred by respondent 1 to 3 and posted as Incharge Principal Higher Secondary School, Kachwamuqam, Baramulla. 6. 6. It is pleaded that writ petition has become infractuous as respondent No. 4 in compliance of Government Order No. 792-Edu of 2010 dated 3rd November, 2010, joined as Incharge Higher Secondary School, B. K. Pora, Budgam on 6th November, 2010 i.e. before the petitioner obtained ad-interim order against the Government order in question. The respondents, to lend support to their case, have annexed with the reply joining report of petitioner as Incharge Principal Higher Secondary School, B. K. Pora, Budgam. 7. I have gone through the pleadings and have heard learned counsel for parties. 8. Transfer of a government employee is an important tool with the govern­ment to make administration people friendly, result oriented, accountable, trans­parent and free from the vice of corruption. It is a device to hone administrative machinery and attain the ultimate goal of good governance. The government cannot be given an agenda of providing an efficient, clean and responsive administration, with hands tied at its back, preventing it from transferring a government employee from one place to another. The power, however, is to be exercised honestly, objectively and in a bonafide manner, and not as a camouflage to punish or downgrade a government employee. This apart, transfer is an exigency of service. It is incident of service and part of service conditions of a government employee. Rule 27, J&K Civil Services (Classification, Control and Appeal) Rules 1956 lays down that a member of service or class or service may be required to serve in any part of Jammu and Kashmir State, in any post born on the cadre of such service or class. All transfers and postings, however, in terms of Rule 27 have to be made by the authority prescribed by Government in this behalf. The scope of judicial review of transfer under Article 226, Constitution of India is limited to malaf ides, infractio of service rules and incompetence of authority making the transfer. The aforementioned three grounds apart, the Courts are to be slow in interfering with the order of transfer of a government employee from one place to another place. In order to run administration efficiently and smoothly, the Government is to have some discretion in effecting transfers of its employees from time to time. An employee has no choice in the matter of transfer and place of posting and cannot insist on posting at a particular place for a particular period. In order to run administration efficiently and smoothly, the Government is to have some discretion in effecting transfers of its employees from time to time. An employee has no choice in the matter of transfer and place of posting and cannot insist on posting at a particular place for a particular period. The Government, in order to rationalise and streamline transfers of its employ­ees, formulates a transfer Policy subject to review from time to time, having regard to new challenges and imperatives of an efficient administration. The State Govern­ment, for the first time, came out with Policy guidelines for effecting transfers and posting, way back in the year 1964. The Policy was reviewed from time to time and the latest Policy is one notified vide Government Order No. 861-GAD of 2010 dated 28th July 2010. The Policy of 2010 incorporates guidelines for making, reviewing, recalling and modifying transfer orders. It makes imperative for all the Government Departments to maintain a complete database on transfers/postings of their employees and suggests while effecting transfers apart from eligibility and suitabil­ity of the concerned employees and the interest of government work, the conve­nience of government employees may be also considered, of course, unless it affects the government work. It recommends that where both husband and wife are in government service they may be posted conveniently as far as possible subject to availability of the post. The Policy also takes care of physically challenged persons and recommends convenient posting in their favour. The Policy suggests a calendar for transfers and tenure of a government employee on a posting. It provides that while minimum tenure of government employee on a post shall be two years, the maximum tenure shall be three years extendable to five years, if found necessary in the interests of administration. The Policy discourages premature transfers but makes room for such transfers when such transfers are found unavoidable and in the interests of administration. The Policy leaves scope for transfer of an employee before the minimum tenure where the performance of the employee is found to be below job requirements or on health grounds or if necessary in interests of administration. The Policy discourages premature transfers but makes room for such transfers when such transfers are found unavoidable and in the interests of administration. The Policy leaves scope for transfer of an employee before the minimum tenure where the performance of the employee is found to be below job requirements or on health grounds or if necessary in interests of administration. The Policy in Para-D identifies and tabulates the authorities that may effect transfer of class of employees, shown in column-I. The salient features of the Policy are referred, in order to emphasise that the Policy lays down broad guidelines and is only recommendatory in nature. It does not have statutory flavour and no enforceable right flows out of the Policy in favour of a government employee. In other words though the government or the authority competent to make transfer, is expected to be guided by transfer-policy notified vide Government Order No. 861-GAD of 2010 dated 28th July 2010, the Policy does not take away from the authority competent to make transfer the discretion or flexibility that is inherent in power to effect transfer of government employees. A departure from the guidelines, incorporated in transfer-policy, is not to be frowned upon and transfer order quashed in exercise of extra ordinary writ jurisdiction, unless, of course, transfer order is made: (a) in violation of Statutory rules; (b) on malafide grounds; (c) by authority not competent to make transfer order. 9. The argument advanced by learned counsel for petitioner that Government Order No. 861-GAD of 2010 dated 28th July 2010, is made in aid of Rule 27, J&K Civil Services (Classification Control & Appeal) Rules 1956, and thus creates en­forceable rights in favour of a government employee, is specious and liable to be rejected. The Government order in question, it may be re-emphasised, only lays down broad guidelines, leaving large room for the competent authority to order transfer of a government employee, to take notice of exceptional circumstances and hardships, to deviate from the suggested course within laid down parameters and does not have the statutory force. 10. The petitioner's case, it is pertinent to point out, rests exclusively on disregard of transfer policy in question and against the backdrop of above discus­sion is destined to fail. 10. The petitioner's case, it is pertinent to point out, rests exclusively on disregard of transfer policy in question and against the backdrop of above discus­sion is destined to fail. The difficulty of the present petitioner is further com­pounded by the fact that he does not complain of any deviation from the transfer policy as far as his transfer is concerned. The petitioner's grievance is that the transfer and the posting of the Officer - respondent No. 4, who is to replace the petitioner as Incharge Principal Higher Secondary School, B.K. Pora, offends the transfer policy. The petitioner, who otherwise cannot claim any enforceable right flowing out of transfer policy, cannot question his transfer when on his own admission, his transfer as Incharge Principal Higher Secondary School, Kachwamuqam, is not in violation of the transfer policy, merely because respon­dent No. 4 is to replace him, has been transferred before completing his minimum tenure as Incharge Principal Higher Secondary School, Ghadole. It is respondent No. 4, who possibly could have alleged departure from of transfer policy and insisted on adherence to the guidelines incorporated therein. 11. From the above discussion, it emerges that Government Order No. 861-GAD of 2010 dated 28th July 2010, lays down policy guidelines for transfer of Government employees without conferring any enforceable right upon govern­ment employee and is recommendatory in nature without any statutory flavour or force. 12. For the reasons discussed above, the writ petition is dismissed with connected CMP(s). 13. Interim direction, if any, shall stand vacated.