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2013 DIGILAW 463 (JK)

Jagdeep Singh v. State Of J&K

2013-08-08

DHIRAJ SINGH THAKUR

body2013
1. The petitioner through the medium of present petition challenges the order dt. 27th of Feb'13, passed by the Principal Chief Conservator of Forests, Jammu, whereby respondent No. 6-Talib Hussain Banday, Forester, has been posted in place of the petitioner, who has been directed to report in the office of the Divisional Forest Officer, Udhampur Forest Division in view of his health condition. 2. The order of transfer is challenged mainly on the ground that the same is bad for want of jurisdiction in as much as the Principal Chief Conservator of Forests, J&K, Jammu, had no authority to transfer the petitioner as in accordance with the Forest Code (7-A), it is only the Conservator of Forests, who could transfer the petitioner within the Circle. 3. According to the counsel for the petitioner, the Principal Chief Conservator of Forests, has the authority to effect inter-Circle transfers only, whereas, in case of transfers within the Circle, the said power of transfer lies with the Conservator of Forests. 4. The second ground of challenge is that the impugned order of transfer was against the Policy of transfer issued by the Government vide Government Order No. 861-GAD of 2010 dt. 28th of July'10 [Refer [2011 (13) JKS JK-48 : JKS Soft JKS/6896], in as much as, respondent No. 6 could not have been transferred as it was a pre-mature transfer in terms of the said policy. Reference in this regard is made to an order dt. 11th of Jan'13, whereby the said private respondent had earlier been transferred from Shivgarh Block of Batote Forest Division and posted to Bhatti Malli Block of Udhampur Forest Division. Since the aforesaid order, in regard to the petitioner, was passed as early as in Jan'13, as such, in view of the Transfer Policy, referred to above, the order impugned which transfers and posts the private respondent in place of the petitioner, it is stated is pre-mature, as the same has been issued after about one and a half month of the order which was earlier issued in Jan'13. 5. Finally, the counsel for the petitioner stated that the impugned order of transfer has been issued for malafide reasons. It was asserted that respondent No. 6, was a blue eyed person of the department and manipulated prized postings at the mere asking. 6. 5. Finally, the counsel for the petitioner stated that the impugned order of transfer has been issued for malafide reasons. It was asserted that respondent No. 6, was a blue eyed person of the department and manipulated prized postings at the mere asking. 6. Counsel for the respondent-State, on the other hand, submitted that the petitioner, a Forester, was posted in Udhampur Forest Division w.e.f. 30th of Oct'2000, and was holding the charge of Timber Firewood Sale Depot and Estate of Udhampur Range, w.e.f. 3rd of Dec'2010. It was emphatically urged that it was only on the basis of a representation filed by the petitioner that he may be given a light assignment on account of his ill-health, that the petitioner has been attached in the office of Divisional Forest Officer, Udhampur, vide order impugned. It is stated that the petitioner has even foregone the claim of his next promotion to Range Officer-Gd.II, on account of his health condition and had requested for a light assignment. It was keeping in view his request that the order impugned has been passed as the petitioner was unable to discharge the functions in the field, a job which entails exertion. According to the learned counsel, the order impugned has been passed in the interest of administration. 7. Counsel for the State further asserted that there was no violation of the Policy of Transfer nor was the order impugned passed for malafide reasons as alleged by the petitioner as he himself had requested for a light assignment. It was also urged that the petitioner had enjoyed maximum tenure of stay at one place since the year 2000. The order impugned only asked him to report in the office of Divisional Forest Officer, Udhampur Range, which office is situate in the same office complex where the petitioner had been working since 2000, and therefore, the order impugned, infact, caused no prejudice to him. 8. As regards the power of the Principal Chief Conservator of Forests, to pass the order impugned, it was stated that the Forest Code was only in the shape of instructions and did not carry any statutory force and, thus, could not be relied upon. 8. As regards the power of the Principal Chief Conservator of Forests, to pass the order impugned, it was stated that the Forest Code was only in the shape of instructions and did not carry any statutory force and, thus, could not be relied upon. In any case, the Principal Chief Conservator of Forests, being a higher authority than the one as envisaged under the Forest Code to effect transfers within the Code, was competent enough to pass the impugned order of transfer. 9. Finally, the learned counsel for the State referred to a judgment of the Apex Court reported as AIR 1991 SC 32, in support of his assertion that the order of transfer cannot be challenged when the same is effected on the request of the petitioner. 10. Mr. K.S. Johl, learned Senior counsel, appearing for the private respondent No. 6, forcefully argued that the Transfer Policy was not enforceable in that regard. Reference was made to a judgment reported as 2003(3) JKJ [HC] 345. He further stated that, even if, an order of transfer was premature, that was within the discretion of the authority concerned and the employee has no vested right to challenge the same on that ground. Reference in this regard was made to a judgment of this court reported as 2004(1) JKJ [HC] 170. 11. While dealing with the issue of mala fide as alleged by the petitioner, Mr. Johl, learned Sr. Counsel, stated that the allegations of mala fide were not specific and were vague, therefore, the petition in no circumstances, would succeed on those grounds. 12. Heard learned counsel for the parties. 13. The scope of judicial review in transfer matters is no longer res-integra. It is settled law that a transfer order, unless shown to be a mala fide exercise of power, in violation of a statutory provision or passed by an incompetent authority, is not open to interference by the court. 14. 12. Heard learned counsel for the parties. 13. The scope of judicial review in transfer matters is no longer res-integra. It is settled law that a transfer order, unless shown to be a mala fide exercise of power, in violation of a statutory provision or passed by an incompetent authority, is not open to interference by the court. 14. In State of U.P. and another v. Siya Ram and another, (2004) 7 SCC 405 , the Apex Court has held as under:- "...................No government servant or employee of a public undertaking has any legal right to be posted forever at any particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this court in National Hydroelectric Power Corpn. Ltd v. Shri Bhagwan, (2001) 8 SCC 574 ." 15. In the case of Union of India and others v. S.L. Abbas, (1993) 4 SCC 357 , the Apex Court while dealing with the guidelines framed by the Government of India regarding couple transfers held that the guidelines/administrative instructions do not create any enforceable right in the employees. The said guidelines are in the nature of instructions and do not have any statutory force. 16. In Rajendra Singh v. State of U.P., (2009) 15 SCC 178 , the Apex Court, yet again, reiterated the aforementioned principles and in paragraph 9 of the judgment, held as under:- "9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, this court held: "4. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, this court held: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day to day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects interfering with the transfer orders." 17. In the case on hand, the learned counsel for the petitioner has made reference to a Government Order No. 861-GAD of 2010 dt. 28.7.2010, which prescribes the policy of transfers/postings of Government employees. It was urged that since the order impugned is in violation of the policy as laid down in the aforementioned Government order, the same cannot be sustained in law. 18. However, a reference to the aforementioned order would clearly show that the said order is, in fact, an executive order having no statutory force or flavor. The said order does not, by itself create any enforceable right in favour of the petitioner which could give him a right to enforce the same in the extraordinary jurisdiction of this court. Even otherwise, if there is a violation of the policy, the petitioner may approach the higher authorities who have framed the policy to ensure that the same is followed as far as possible, in the interest of administration. However, breach of conditions of the transfer policy by itself creates no vested or enforceable right in favour of the petitioner. 19. Even otherwise, if there is a violation of the policy, the petitioner may approach the higher authorities who have framed the policy to ensure that the same is followed as far as possible, in the interest of administration. However, breach of conditions of the transfer policy by itself creates no vested or enforceable right in favour of the petitioner. 19. In Kanshi Ram Verma v. Municipal Committee, Mansa, (1981) 2 SCC 72 , the Apex Court has held as under:- "2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant." 20. The next ground of challenge was that the order impugned had been passed by the Principal Chief Conservator of Forests, who was not competent to pass the said order because as per the Forest Code, it was the Chief Conservator of Forests, who was competent to order transfer of the petitioner. 21. Learned counsel for the petitioner, however, failed to satisfy this court regarding the enforceability of the Forest Code and whether the same had any statutory force. In any case, the Principal Chief Conservator of Forests, being an authority higher than the one envisaged under the aforementioned Forest Code, could not be, in any manner, deemed to be incompetent to pass the order of transfer impugned in the present petition. The assertion of the petitioner in this regard, thus, cannot be accepted. 22. So far as the allegations of mala fide leveled against respondent No. 6, are concerned, these are absolutely vague. The law with regard to bias and mala fides is clear. The allegations should be specific and detailed and should inspire the confidence in the court that the same are true on the face of it. 22. So far as the allegations of mala fide leveled against respondent No. 6, are concerned, these are absolutely vague. The law with regard to bias and mala fides is clear. The allegations should be specific and detailed and should inspire the confidence in the court that the same are true on the face of it. A bald assertions that respondent No. 6 was a blue eyed person of the authorities who had actually manipulated the transfer of the petitioner in the past also could not be sufficient to suggest mala fides against the petitioner. 23. There is considerable force in the submission of Mr. G.S. Thakur, learned counsel for the official respondents that the order impugned in the petition, in fact, has the effect of transferring the petitioner within the same office building where the petitioner is otherwise working since 2000. The order of transfer clearly causes no prejudice to the interests of the petitioner nor has it affected any of his service condition. The petitioner does not have any vested right to remain at a particular place for perpetuity. 24. This petition is, therefore, found to be without merit and is dismissed.